DANIEL “MACK” ARMSTRONG, ESQUIRE Oral History Project The Historical Society of the District of Columbia Circuit Oral History Project United States Courts The Historical Society of the District of Columbia Circuit District of Columbia Circuit DANIEL “MACK” ARMSTRONG, ESQUIRE Interviews conducted by: Matthew S. Sheldon, Esquire October 22, 2011, April 19, 2012, May 17, 2012 and June 21, 2012 TABLE OF CONTENTS Preface i Oral History Agreements Daniel “Mack” Armstrong, Esquire iii Matthew S. Sheldon, Esquire v Oral History Transcript of Interviews: First: October 22, 2011 1 Second: April 19, 2012 73 Third: May 17, 2012 99 Fourth: June 21, 2012 126 Index A-1 Table of Cases B-1 Biographical Sketches Daniel “Mack” Armstrong, Esquire C-1 Matthew S. Sheldon, Esquire C-3 NOTE The following pages record interviews conducted on the dates indicated. The interviews were recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded an opportunity to review and edit the transcript. The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the Oral History Agreements included herewith. © 2013 Historical Society of the District of Columbia Circuit. All rights reserved. PREFACE The goal of the Oral History Project of the Historical Society of the District of Columbia Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are trained by the Society. Before donating the oral history to the Society, both the subject of the history and the interviewer have had an opportunity to review and edit the transcripts. Indexed transcripts of the oral histories and related documents are available in the Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the Library of the Historical Society of the District of Columbia With the permission of the person being interviewed, oral histories are also available on the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as well as electronic versions of the transcripts, are in the custody of the Society. -1- ORAL HISTORY OF DANIEL “MACK” ARMSTRONG First Interview – October 22, 2011 This interview is being conducted on behalf of the Oral History Project by the Historical Society of the District of Columbia Circuit. The interviewee is Daniel “Mack” Armstrong and the interviewer is Matthew S. Sheldon. The interview is taking place at the Law Offices of Goodwin Procter on October 22, 2011. This is the first interview. Mr. Armstrong, who was with the Federal Communications Commission for many years, and Mr. Armstrong has graciously offered to let us tape his oral history. MR. SHELDON: Mr. Armstrong, today, what I would like to focus on is your upbringing, your college experience, and, if we can get to it, your early legal career. So, first, thank you for being here with us and I hope you could just give us a brief personal background about yourself and where you’re from. MR. ARMSTRONG: I was born in Kingsport, Tennessee, which is about 30 miles from the town in which I lived my entire childhood, which is a small town – Rogersville, Tennessee. I was born three weeks and one day after Pearl Harbor, December 29th, ‘41. In my, until I was five and a half years old, I was the only child. My brother was born when I was about to enter the first grade in ’47. My father was a merchant, he and his first cousins and his uncles had a family department store in Rogersville and they held that store until ’82 when my father was beginning to, his health was declining, his partners felt it was declining so they sold it. But he was a merchant and he, my mother was a stay-at-home mom. She had grown up in eastern North Carolina, had gone to Mary Baldwin College in Staunton, Virginia, and had roomed with my father’s first cousin which is how she met my father. He had been a University of Tennessee graduate – and my paternal grandparents were both dead by the time I was born. My grandmother died when my father was 15 years old and then my paternal grandfather died about four months before I was born. So my real grandparent experience was on my mother’s side and -2- they lived in Tarboro, North Carolina, which is in eastern North Carolina about 15 miles east of 95 and we would spend summers over there with them. In fact, my father was, he was stateside, but he was, when he was in the service in World War II, my mother and I actually lived in Tarboro with my grandparents for about two years, and then subsequently we spent our summers there. I went to the elementary school in Rogersville in grades one through eight and then my father, I was young, since I was born in December and in Tennessee in those days you could start school when you were six years old before the first of January, now most places you have to be six before the first of September or October I think it is now. But I started school when I was very young. I was one of the younger people in the class, and when I was 13 and a half years old, my father said, well we had an excellent elementary school but he was concerned about the high school, so he said “I think…,” he and my mother said ,“We think we ought to send you off to prep school.” So I went to the McCallie School in Chattanooga, Tennessee, which at the time, it was a military school, with military training. It was a very strict school, but it was a wonderful experience for me, anyway, I met a lot of nice people. I enjoyed the academics. I didn’t particularly like the military but I got through it. I had heard about Princeton as an excellent undergraduate school so I was thinking about applying to Princeton, and then one day the headmaster came in and he said we get to nominate every year two seniors to go to Chapel Hill and interview for the Morehead Scholarship at the University of North Carolina and we would like to nominate you as one of our two – and it was a shock to me because my limited understanding at the time of the Morehead program was that it was patterned on the Rhodes scholarship program and I know, at that time, Rhodes Scholars were perceived, you know, it looked for athletic excellence as one of the primary qualifications – and my physique was not good, I was not a good athlete, I didn’t have anything in my McCallie resume on the athletic -3- side, so this was a shock to me. I didn’t really expect that this was going to happen. But, I thought about it and obviously I had some eastern North Carolina connections and so decided to pursue the possibility. The interview, in those days if you got nominated by a preparatory school, the interviews in Chapel Hill were usually pretty easy to pass. You’d have to really screw up if you weren’t going to get it. Unlike the people in North Carolina who competed for those scholarships, and who had a very rigorous, competitive system with a number of, a series of interviews. To make a long story short, I got the scholarship. So in the fall of ’59 I entered the University of North Carolina and… MR. SHELDON: And let me go back for a second and just ask you, what was the community like that you grew up in? MR. ARMSTRONG: Quintessential small town. It was one of the older communities in the state of Tennessee. I think when I was growing up, the population was probably about 3,000. It was, I would guess largely white. There was a black college there that had been there for many years and so there were a number of black professionals that were in the community, the black population of the community was a very highly educated group – but this is before Brown v. Board when I was, Brown v. Board didn’t come down until I was in the seventh grade. They always said that our town in the Civil War had been divided, which I think was true from subsequent things that I read, in fact there’s an old hotel on one side of the street and an old house on the other side of the street, and the lore has it that the Confederate Army stayed on one side of Main Street and the Union Army stayed on the other. My family, I think, were probably, they were not, I’ve never heard of any stories that they were warriors but they were Union sympathizers. We were very active, and my father was very active in the Presbyterian Church, and that was a major part of my upbringing, Sunday school, Sunday morning services in the -4- church, and the social activity was very much organized around the church. There were no, there was no kindergarten in those days. I didn’t have pre-school of any sort. All the organized sports activities, which occupy young people today, they really weren’t there then, so I mean recreation would sort of consist of, you know a bunch of kids in the neighborhood coming out in the driveway in the afternoon shooting basketballs for a couple of hours after school, but it was, I mean everybody sort of seemed to know everybody, obviously the people you knew best were in the church because you knew everybody. MR. SHELDON: And what would you do during free time? MR. ARMSTRONG: My dad was a golfer and I occasionally would go out with him, but for the most part it would be pick-up basketball and tennis with my neighborhood friends. None of us were any great tennis shakes but we enjoyed playing over on the tennis courts near the grade school. My father did not hunt and didn’t fish. My uncle did but I never picked up those sports, and in North Carolina, we would, we went to baseball games, there was a minor league baseball team there. My grandfather would take me to their games. We had, I had four cousins in North Carolina, along so when we were staying with my grandparents, I was the oldest grandchild. I was a little bit older than any of the rest of them, but we had fun, sort of just backyard picnics and do stuff with my cousins. MR. SHELDON: And this was a segregated community, at the time? MR. ARMSTRONG: Yes. MR. SHELDON: What was your earliest recollection of segregation? MR. ARMSTRONG: It was a very, in Rogersville, as I indicated earlier, there was a small, highly educated black population. We had domestic help in our house, so we were very, very close to the people who worked 9 to 5 domestic service there. But I don’t ever really recall -5- that it was a big issue in our town. I remember when Brown v. Board was decided, we had segregated schools and it didn’t really register on most scales at the time how significant this was. I’m, now quite different in eastern North Carolina. Totally different over there in the summertime. My grandfather to whom I owe a lot, to whom I was devoted, but he was very much, he was a businessman in Tarboro and he certainly did some business with the black population. But it was not a highly educated black population and it was a very numerous black population and my North Carolina relatives were much more extreme in their, you know, concerns when schools began to be integrated. It was a very different culture in my North Carolina experience. MR. SHELDON: Do you have a recollection of when you first became aware of segregation? MR. ARMSTRONG: I’m not sure I ever really focused on it, until after the Brown decision. That was sort of the conscience-raising experience. Because we did not have any incidents of any sort in Rogersville. The races seemed to get along very well. MR. SHELDON: Were you already out of the public school by the time integration had occurred? MR. ARMSTRONG: I was already off at McCallie Prep School. I’m not even sure of what year they began to integrate the schools in Rogersville, but I was off at McCallie. McCallie was, my recollection is we had very few, if any, blacks that were there when I was there from ’55 until ’59. So I did not have much schooling on an integrated basis. MR. SHELDON: How much were you tracking national and world events during your time at McCallie? -6- MR. ARMSTRONG: We were very much aware of the political scene, yeah we were. Sputnik and all of that stuff started when I was at McCallie. MR. SHELDON: What’s your earliest recollection of the practice of law growing up? MR. ARMSTRONG: In a close-knit community of Rogersville, there were, you know, a handful, not since it was a small town, there weren’t that many but there were a handful of law firms in the downtown area and many of the attorneys happened to be members of our church, so friends of our family, so I certainly, but there was nobody in my family that was a lawyer. There was really nobody in my mother’s family over in North Carolina that was, the same thing. There were social friends of my grandparents and my uncles over there who were attorneys so I was aware of the existence of attorneys but I didn’t come from any kind of a lawyer background at all – and I guess my first sort of gravitating towards the law myself, I liked debating, that was one of my extracurricular activities at McCallie, and I liked politics. My uncle in North Carolina in the summertime and I would have great fun at the dinner table on Sunday arguing politics, arising from my background coming from east Tennessee, which was Republican and my uncle was from eastern North Carolina which was strongly Democrat. We used to have spirited political debates and I enjoyed that, I enjoyed it obviously on a more organized basis at McCallie, and I continued the debating when I got to North Carolina. I was a major in American History and it just sort of seemed like studying law would be an interesting thing to do. It was not because of any family pressures to do it. MR. SHELDON: Going back to your decision to attend the University of North Carolina, can you tell us about why you chose it, and your experience there? -7- MR. ARMSTRONG: Well, there was I think it was not until this opportunity with the Morehead came up, it was really not on my radar screen because I think one of my uncles from North Carolina had gone there and he was a party boy and never graduated, just had had too good a time – and it was known as a party school and I think my mother and my grandmother in particular knew that. They knew that I wasn’t, I was a quieter type, I was really, Rogersville was a very conservative town. Tennessee was just, Knoxville was just 60 miles away. At that point when we were growing up, it was one of the largest cities in the country that didn’t even have legalized liquor. So it was a very, drinking was frowned on, neither my mother nor father drank. They knew about the reputation of Chapel Hill. I think they were a little bit ambivalent when it came up on the radar screen. Ultimately, I think what drove me to do it was: one, my prep school had honored me with one of its Morehead Scholarship nominations; two, I do have ties with Carolina and I knew that despite all of the things that were of concern, it’s a good academic university. My father had sacrificed to send me to McCallie. His income as a merchant of a small town certainly gave us a good life but it certainly wasn’t easy for him to send me to McCallie and I viewed this as a little bit of a way to help financially, to take the scholarship. I think those were sort of the reasons that I decided to say I’m going to North Carolina. I withdrew my Princeton application. MR. SHELDON: What was your first impression of the school? MR. ARMSTRONG: I was in the honors program, and so that was a group of, I think about 30 or 40 of us, the first years. We got our own set of classes and I roomed with, my first year, with a student who had also graduated at McCallie whom I knew, and I got very active early on in the debate team. It was one of the “small world” stories. I sort of showed up there, having done it at McCallie and liked it, but they didn’t have a huge program at Carolina. In fact -8- at the time they had, they were looking for somebody who was going to actually take charge of supervising the debate team. They had an interim English, interim coach who was an English professor – and he, for some reason, he seemed to take a liking to me and gave me, there wasn’t that much competition. But he took a liking to me and he sent me off, I think if I remember correctly, to a debate tournament within a couple of months after I had arrived, so I was immediately sort of thrust into debate. So in between trying to do the honors stuff and, you know, doing debating which means about five or six trips a year, that was pretty much…I didn’t have a car and people who knew me no doubt expected I would be at Carolina for its academic benefits, not for its party benefits, and I sort of made good on that. I just kept my nose to the grindstone and…now one interesting story, I mentioned this English professor who was my interim debate coach and our paths more or less diverged after the first year when they finally got a permanent coach, and I think I never had him in English, but when I came to DC, fast forward a few years later, I was reading the newspaper one day about the Folger Shakespeare Library, they mentioned the Director of the Folger Shakespeare Library, it was Dr. O. B. Hardison. I said, I remember that name, he was the English teacher. MR. SHELDON: I’ve heard stories that there may have been another D.C. attorney on your debate team, perhaps Judge Sentelle? MR. ARMSTRONG: Indeed he was. He was, I had to, he had to refresh my recollection in whether he was one year behind me or whether he was two years behind me. I think it was probably two years, but he was on the debate team, and I remember, we took a trip, he was from western…I was from a small town in eastern Tennessee, he was from a small town in western North Carolina, and I remember that we took a, the team went on a tour of some of the high schools in western North Carolina, and we had a debate at the high school in Canton, I think it -9- was, that’s where he’d gone to high school – and our paths sort of parted for about probably six to eight years but then I was in DC, I remember, I think in some way hearing from him that he was going to be in town and so we had sort of reunited at dinner – and I had a little bit of dealing with him on the job, when I was at the FBI, and then our paths more or less parted…diverged…but when he became a judge, on the D.C. Circuit some fifteen years later he was very nice to follow the Federal Reporter, I guess, and he couldn’t help but know I was an attorney at the FCC. By that time, I’d become an attorney at the FCC, and he invited me to be one of his guests at some of the judicial conferences. MR. SHELDON: And I have to ask, did you two ever debate each other? MR. ARMSTRONG: I’m fairly certain that, in the intra-squad scrimmages, we did. And I think I remember, at least, the debate we had in his high school, in Canton, North Carolina. We had some good repartee back and forth. I can’t remember if we were partners. I suspect we might have been on opposite sides. But, in any tournaments or anything we went to, the way that we were organized, we were always on the same side. MR. SHELDON: Do you have any impressions about him as a debater? MR. ARMSTRONG: Absolutely classic, good ole guy, with good common sense. My memory from listening to him then is that he talks now, just like he did then. There are a lot of people in the FCC, who tell me that they sometimes have a hard time understanding the Judge when he asks questions from the bench, and I’d say, well, you know, I’ve had a little more practice listening to him. But just a really good—I was not surprised that he had subsequent success, because he had a good way with people, and he had a lot of street smarts. MR. SHELDON: You went to college at a turbulent time. Were there active civil rights efforts under way at UNC at the time? -10- MR. ARMSTRONG: It’s funny you should ask that question, because it sort of ties in again with Judge Sentelle. He was gracious enough when the Communications Bar Association gave me an award three years ago—I think it was—and Judge Sentelle was gracious enough to come speak, and he brought up some aspects of our time together in Carolina, which I remembered, and some that I had sort of forgotten about, but this focuses around this student at the time, and there didn’t seem to be very many, but one of the relatively few black students at Chapel Hill. It was a student by the name of Kellis Parker, and Kellis came out for the debate team and was a perfectly—there was never any question on my part that he’s a student of this university; he wants to debate; he’s on the team like everybody else. So, it was—and nobody in the student body complained. The Judge, in his remarks at the ceremony, suggested that it took some courage that those of us on the debate team worked with Kellis as well as we did. But there was nobody—students never gave us a hard time. Either the debate team was below everybody’s radar screen or just everybody, you know, had other—whatever it was, but there was never a problem integrating Kellis into, and later I think he became clerk for Judge Robinson and died at much too young an age, after being, I think, a professor at Columbia University. And there was a nice write-up when he died in the New York Times. But in any event, there was just never any problem integrating him into the work of the debate team. It was just not—and we may have been one of the relatively few extracurricular groups that was integrated, but it went off without a hitch. I was certainly aware of the potential sensitivity at the time from the fact that Kellis was black, in an environment that was largely white and in a part of the country that had a long history of difficult race relations. I worked with Kellis on a professional basis: excellent. The Judge even remembered something that I had largely forgotten: that we were coming back on the train from a debate somewhere and Kellis was there. -11- And I don’t know exactly how this happened, but I do now remember that it did happen: that there was a policeman who came, and my recollection is, the policeman said, when we got to Raleigh that because of an alleged incident involving Kellis on the train he was going to be put under arrest. And I think the rest of us that were on the group. Ultimately, I was trying to remember, the Judge gave me credit for something – what is it I did? I think when we got back to Raleigh, we were able to convince the policeman, who was still insisting on pursuing this alleged charge against Kellis that I would be responsible for ensuring that, you know, Kellis showed up for the proceeding. And, for God’s sake, let Kellis go back to Chapel Hill with us. And that’s something that—I think that’s what happened. And ultimately, I think, after we got back to Chapel Hill, cooler heads prevailed, I’m not even sure I had to do anything. But nothing further happened. But—so that was, as I look back on it, the positive side. There was one episode, though, which I remember, and it dramatically brings home to me how different the world was then from what it is now. I got on the bus somewhere, I think it might have been in Raleigh, to go back to Chapel Hill. It might have even been up here in D.C., I’d been up here to get material for the debate team. Just because I liked coming to Washington and was headed back to school. And when I got on the bus, there was Kellis, to my surprise. And he was seated, he was probably seated in the front of the bus, and nobody was sitting next to him. There were a fair number of people on the bus. I certainly spoke to him in a very professional way, but it didn’t occur to me to sit down beside him and ride back to Chapel Hill. You know, I was in the row behind him or the row off to the side, and I didn’t carry on a long conversation with him. I think that was simply just a reflection of the fact that my temperament was not to make waves and I had the perception in my mind that if I’m too overtly friendly with Kellis on this bus, you know, these other people at the bus station, other people getting on the bus, might not like it. I -12- was not one to provoke an incident, so, you know, I spoke politely and he did the same to me, and we just sat in our separate place. But he didn’t—if there was any lingering problem in our ongoing relationship on the debate team that resulted in not having taken advantage of that occasion to be locally supportive, he never showed it. We got along fine. But I was, again, not the demonstrative type. I was politically conservative. Chapel Hill had a reputation of being a fairly liberal place, but I didn’t run with the sort of crowd that was really taking an aggressive posture on the civil rights. That wasn’t really the group that I hung around with much. We never had any unpleasant situations, but just kind of a separate existence. And I still don’t remember a large black student body the entire time I was there. There were a lot of very active civil rights people, but they were all white. MR. SHELDON: When did the Vietnam War enter the picture? MR. ARMSTRONG: The other big thing of my generation, quite obviously, was that. My first real recollection of Vietnam really didn’t occur until the fall of my first year at Harvard in Boston. I remember in, probably, September or October, Kennedy was obviously still the President, it was before Dallas – Madam Nhu, who was the wife of one of the two, of the brothers that were running South Vietnam, and had become something of an outspoken controversial person. She was on a tour of the U.S. and she spoke at, I think, Cambridge Rindge High School, which was not far from Harvard. And some of my friends from law school and I, we went down to hear her. And I remember—I mean, I knew from the newspapers that she was controversial, and I remember there were some demonstrations there the night she spoke. About four to six weeks later, it was November 1st, that was the day of the coup in Vietnam, her husband was killed, her brother-in-law was killed, I guess she went into exile, I can’t remember specifically. -13- But, I certainly was aware in that autumn of ’63 that there was turmoil in South Vietnam. Then, of course, three weeks after the coup in Vietnam was Dallas. My next big recollection about Vietnam was in the summer of ‘65 when President Johnson sent – made the huge commitment of troops. I was working as a summer associate in New York, when he made the speech that he made, going in on a full-scale basis. There’ve been a couple of these incidences, obviously the Gulf of Tonkin in ’64, some isolated incidents in ’65 before the big buildup. But obviously that was something that, in the summer of ’65, when the huge troop commitment was made, that was something everybody in my generation knew was going to have a huge impact on us. It was something I don’t have to elaborate, it certainly did. In the autumn of ’65, after he had made the build-up there and I was in the Young Republican group and there was, believe it or not, at Harvard, in those days such a group. The Ripon Society was fairly active up there, which was a group of more liberal Republicans and we had a fairly sizable membership in the business school and the law school. If you put them together, it was a fairly sizable–surprising for Harvard–membership in the Young Republican club. An upper classmen, my freshman year, had gotten me active in that club, so I was in a leadership position in the club in the fall of ’65. And there was, a sentiment was circulating that there should be a bi-partisan show of support for the American commitment in South Vietnam. And there was a resolution circulated and a few, I guess you could say, principled members of our club, refused to sign it. It was a fairly, broadly supported resolution. I remember that was done. I think it might also have been a little bit of method in everybody’s madness because my recollection is there was more support for that war coming out of the Republican Club than there was out of the Democratic Club of the law school, at the time. I think there was a certain satisfaction of a partisan nature in going public with this difference. -14- Now, to fast forward: I applied, I was going to try to get a commission, figuring military service was going to be absolutely inevitable, I would try to at least not be a buck private in the army. I would see if I couldn’t get the commission and I applied for commission in the Air Force and I was also going to parlay my legal background, if I could, and get something in the Judge Advocate General area. Applied for a commission in the Air Force, if I remember correctly, I was very busy working on that in my last semester in law school, which would’ve been spring of ’66. Turned out that, I didn’t get it and at about that time, the summer of ’66, I had been notified that I did not get that commission, I also got a letter from my draft board giving me my orders to report. MR. SHELDON: Were you given a draft number before that? MR. ARMSTRONG: Oh, I had a draft number. In our generation, we’d already registered way back-when I was probably, let’s see, was it 17 when you registered? I think I’d registered before I’d ever graduated from Carolina. I got the deferment, to go to the law school, which a lot of people in my generation benefitted from getting. That was one of the big issues of course, when Vietnam did heat up. But, in any event… MR. SHELDON: What were the mechanics of how the draft worked? MR. ARMSTRONG: It was before the lottery, so you got your notices. When my deferment was up, what had happened-my law school deferment was up. When I graduated from law school in June of ’66, I believe at that time you were allowed to take the bar exam before you would receive an induction notice. You would be in communication with your local draft board. You would fully fill them in-particularly on any bit of information that would certainly qualify you for a deferment or a postponement of your induction notice. I think you were allowed to take one bar exam. At the time, I was making the decision about which bar exam to -15- take, I had not yet been turned down by the Air Force. So I took the, even though I had worked in New York as a summer associate, after the 2nd year and ultimately expected to be practicing in New York, I opted to take the Tennessee bar exam because it was quicker, I mean it was sooner and at this point I was still thinking I could get in the Air Force. So I guess I got a deferment to take that bar exam. About three weeks after that bar exam is when I got the letter of turn down from the Air Force. I believe it is also, just about that same time, or about three weeks after the Tennessee bar exam, that my local draft board, which was under huge pressure, I mean this was where the build-up was really intense and they were, the local boards were given their quotas. So, every-it was no surprise that, you know, the notice to report for duty came to me. And everybody else kind of, now here’s where, you know, I was the beneficiary probably of the fact that I was raised in a small town-was a very close-knit community. The chairman of the local draft board had been a member of the church in which I had grown up. I was very open about it. I said, Look. You’ve given me everything I’m entitled to. You gave me a deferment for law school. You gave deferment for the bar exam in Tennessee. I said, and I, not trying, I know that military duty is inevitable, I’m not trying to get out of it. Is there any chance that I could take the New York bar; you let me take the Tennessee one, is there any chance I can go ahead and take the New York bar, while I’m relatively fresh out of law school, since I ultimately hope to practice in New York. The next New York bar is not scheduled until the end of November, the beginning of December. So, you know, I’m asking you for a-probably six months’ postponement in my date to report.” They did it. That wouldn’t have happened, I’m sure, had I, you know, been in a big city. But this was, you know, the advantage of knowing the members of the draft board, having grown up that way. And so, I have no doubt. This gentleman is still living and I told him any number of times since then how indebted I am for -16- what he did. The incidental benefit of that was that during that extra six months, while I was working, back working as an associate at Chadbourne and Parke in New York, studying for the New York bar, I also got the commission in the Navy. The draft board chairman was really just, letting me take the New York bar while my law school learning was fresh. But it was in the back of my mind that if I do get this extra time, I don’t have to give up trying to see if I can get the commission as an officer. I failed in the Air Force and maybe I won’t fail elsewhere. And the only thing I had ever told my friend on the draft board, I said, listen, I know I’ve got military service in my future. I didn’t say, my heart is set on being a buck private in the army. So, I didn’t feel like I’d misrepresented it. But the upshot of it was that by the time I took the New York Bar Exam, I had my commission to be a lieutenant junior grade in the Navy JAG and my orders were to report to training in Newport, RI, in March ’67, which I did. MR. SHELDON: What were the influences there that led you towards law school? MR. ARMSTRONG: I guess that there was no well-thought-out career plan that had been verbalized or put on paper. It was more, I guess, my cynics or critics could just say you just sort of stumbled along and one day found yourself applying for law school. But I guess it was the seeds of law school, I don’t specifically remember this, but I guess the seeds of going to law school had probably been planted even before I got to Carolina. Carolina didn’t just, you know, light the switch. And they were, nothing that happened there led me in a different direction. I majored in American History, I had a fair amount of Political Science courses or, I had the debating, I was active in the Republican group at Chapel Hill, there were also some Republicans at Chapel Hill in those days. So all of those things I guess reinforced sort of a latent tendency which was there at the very beginning. But I don’t remember any single event. I just know that -17- when it came to our senior year, I had the applications for University of Virginia and Harvard. I think those were the two places I applied. And I signed up to take the LSAT. MR. SHELDON: By the way, what was your major in college? MR. ARMSTRONG: History, American History. A fair number of Political Sciences courses but it was American History. I had initially, in my junior year, I had started down the path of trying to graduate with honors in History, which involved a course your second semester of your junior year and then involved writing a paper your senior year. I took the course the second semester of my junior year and then kind of got cold feet about doing the paper my senior year because the debating took up a fair amount of time. We had, you know, six or seven trips a year to D.C. or New York or whatever, which required us to be out of town. I tried to take that seriously, I enjoyed it but I still considered it sort of work. I just began to think that I knew I’d be also applying for law school, taking the LSAT. All of these things, as best as I try to reconstruct what happened, I think I just decided it might be, I felt like I had the grades that would look good on my resume and I just didn’t think I needed that extra “He graduated with honors in History,” so I backed out of trying to write a paper and I didn’t graduate with honors. I mean I was Phi Beta Kappa, I did fine with my academics, but I didn’t graduate with honors. I just got the degree in History. MR. SHELDON: Do you recall what the application process was like for law school at the time? MR. ARMSTRONG: My recollection is that it wasn’t anywhere, it wasn’t anywhere as time-consuming and sensitive as I think it has now it has become… I don’t remember when I actually submitted the applications. I don’t remember that the applications were as difficult as I gather they are today. Certainly the initial application to go to Carolina was not anything like -18- what kids go through today when they’re applying for college. The LSAT was given, my memory was, after the first semester we were in early February before I was to graduate in June, that’s when you actually took the LSAT. I remember getting an acceptance from the University of Virginia in probably April. I don’t think the acceptance from Harvard came in until May or June because I think I remember graduation weekend, which was at that point later than it is now, it was the first weekend in June. And I think I remember discussing with my parents at graduation that you know, now I had these two law schools from which to choose and that was something that we were pleased that they were both good schools and it was a nice choice but it was a hard choice. I think I ultimately said, you know I think, it was in light of subsequent history, I guess it’s a little bit ironic. I think the thing that probably ultimately persuaded us sort of, as my parents and I as a group to pick Harvard was – you’re a southern boy, the odds are you’ll be spending your life, probably back somewhere in the South. It will be a little more broadening experience for you perhaps if you do your law school in New England as opposed to Charlottesville. That was the ultimate decision, and now as it turned out, if you count D.C. not being the southern city that we were thinking about when we made that statement, I think that when we thought about the South, we were thinking much more about Tennessee or maybe North Carolina. I really never, under that theory, I probably would have been better off to have gone to the University of Virginia because I have been in New York and D.C. ever since and been around a lot of Harvard people ever since. MR. SHELDON: Did you have any preconceptions when you were thinking about law school and then beginning it about what you wanted to do with your law degree? MR. ARMSTRONG: Consistent with what I said a few minutes ago about, you know, how I came to be an applicant for law school—did I have a well thought out career plan about -19- what I would be doing? No. I mean, I obviously knew that… well I worked, my first practical experience came after my second year when I was a summer associate at Chadbourne, at that point it was called Chadbourne Parke Whiteside and Wolff, so that, those ten weeks, that was my first practical exposure to the law. There wasn’t nearly as much, I don’t know what they do at Harvard now, but a lot of law schools, you know a lot more practical training earlier…but we were very much, sit in class, we’ll tell you which classes to take, you don’t tell us. We’ll use the Socratic method and you know, it’s grinding, and you just do that. So my first real practical exposure to the law was that summer and I, on the last day of the summer I was in the group of summer associates who were told that they would be welcome back after they finished law school and so I’m hoping the entire time in the third year of law school, even though I knew there was going to be an interruption for military service, I thought well that’s a place that’s there for me in the future. I didn’t consciously say this is what I know I’m going to want to do and one of the appeals of being a summer associate at a large firm was, and then again for about six months while I was studying for the New York bar before I went into the military, one of the appeals of doing that was I knew I didn’t have to make a final decision and so I thoroughly enjoyed it, but I, there was a little nagging uncertainty in the back of my mind about whether I would enjoy it as much if the military were behind me, my life is now ahead of me and here I am in New York. It was just, do I want to spend, you know, five or six years hoping that I become a partner and then do I want to spend time as a partner? Little uncertain. So, as I approached the end of my military career, the three years, about three or four months before I was to be discharged in the autumn of ’69 I guess it was. I was reading the New York Times one Saturday morning in Newport, Rhode Island. With one exception, which I’ll come to in a minute, I spent almost all my time in Newport. I was Stateside and I was an instructor in military justice, I was -20- reading the New York Times one Saturday morning when a little light went off in my head because I read that the new U.S. Attorney for the Eastern District of New York was Edward Neaher who had been a partner, a litigation partner at Chadbourne Parke. And I’d worked with him. Unlike some of my other peers in my class of JAG officers who’d gone through training together, I really hadn’t had the benefit of a lot of court martial trial experience. I had been in the academic side of it and I was chafing a little bit at that and I kept coming, talking to my military superiors, the military brass, can’t you give me a little chance to do some trial work. So the desire to do trial work was in the back of my mind. And some nagging uncertainty that maybe going back to be an associate and work at a law firm was not something that I was really quite ready to commit to. I just, I jumped at the chance to seek out the U.S. Attorney in Brooklyn and say you know, would you be willing to take somebody with my accent in Brooklyn? And Mr. Neaher was extremely nice and gracious about it and he took me. So when I got out of the military in the spring of ’70, I had the opportunity to be an Assistant U.S. Attorney in that office. MR. SHELDON: What was your initial experience like at Harvard? MR. ARMSTRONG: Different experience probably from most people, but I, whether it was a reflection of the fact that we were a very closely knit family or the fact that I had been sort of separated for a major portion of the year from my parents since I was, went off to McCallie when I was 13 and a half years old, our summers were reserved for family. We took trips together, took vacations together. There was no, you know, pressure from my parents, you know, to get a job. My brother was, came along five and a half years later. He had a different experience. He was working at a place up in Acadia National Park in Maine. And looking back on it now, I think I perhaps missed a lot by, you know, just being a home-body. At the end of the -21- first year of law school, in ’64, I was really…that was the hardest year I ever had in school was the first year at Harvard, and I didn’t adjust probably quite as well to the different way I think that you should probably do your first year. I mean I had some study groups, they kept telling me do study groups, but I kept thinking you know, you can probably do, get through the first year of law school pretty much like I’d gotten through prep school and very much like I’d gotten through Carolina. And then, I was exhausted. My parents were a little bit concerned about me, that I’d just worked myself too hard, that the pressure of first year had been too much. So I really, after first year of law school, I sort of really needed that summer to kind of rest up and recover. I was not in great shape. I did a little bit of work for one of our local attorneys that first year, property deeds, doing title searches, for one of our friends who had one of these law practices on Main Street. MR. SHELDON: Was it difficult for a Southerner to go up to New England? MR. ARMSTRONG: It worked fine, it really did. I fell very quickly that first year into a little circle of friends. I was living there in one of the dorms at the school. And there were, I mentioned, I think I mentioned there was an upperclassman who was directly across the hall from me who took a liking to me and said I’m going to get you to come in and work with me in my Republican club, we had Republicans from business school, Republicans from the law school, get you into that, get you active in that. And he did. I met, probably a group of about six to ten of us who were good friends and took a lot of our meals together in Harkness Commons and we just got to be good friends. And so of this, I said earlier it was, I didn’t realize until the end of the year how difficult academically it had been for me and what a toll it had taken on me. MR. SHELDON: What were the classes like, as far as size, lectures, etc.? -22- MR. ARMSTRONG: Yeah, the classes were, I think the class was roughly 500. We were organized that first year into four sections, about 125 per section. I was a back-bencher, I was not a talker. I was, there were members of my section first year that I was greatly endeared to because they volunteered. Now that wasn’t going to completely shield me from being called on, but it made things a lot better. Alan Morrison, he’s a fairly prominent public interest attorney in Washington, he was in this section. David Rosenbloom was in it, he’s a prominent tax lawyer here in Washington, I think Justice Souter was in my section first year. Although I don’t recall that he did a lot of talking. But there were about, you know, 8 to 10 people who were always volunteering and would carry on a dialogue every minute that dialogue continued was a minute the professor couldn’t be looking down at his chart to say, Mr. Armstrong are you here today? They were large classes and I really didn’t get to know the professors very well. Some students were much better about maybe signing on with a research assignment or they’re getting, doing some kind of maybe work outside the classroom to actually know the professor on a personal basis. I was not one of those. Charlie Fried was my Criminal Law professor. He was a fairly young professor. And, we used to have criminal law class meet, in those days they had law, they had classes on Saturday, so my Criminal Law class, I think we met 11:00 or 12:00 on Friday and Saturday. And it was Professor Fried and he was one of the more terrorizing professors for a first-year student. And, I remember on Fridays he would be just absolutely a holy terror. He scared people like me to death. On Saturday at noon there would be, especially during football season in the fall, a lot of people would have their dates sit back in the gallery and I began to notice there was a real pattern that on Saturday he was Dr. Jekyll and not Mr. Hyde. Saturday he would, he would kind of pull together the week’s notes and pulled together everything that sort -23- of been left hanging on Friday. And he was very much more civilized in general when he would call on people. So it was a joy to go his class on Saturdays and not a joy otherwise. MR. SHELDON: And was it all the true Socratic method? MR. ARMSTRONG: It was very, very much, absolutely. MR. SHELDON: Did you have to stand when you were called upon? MR. ARMSTRONG: I didn’t, I don’t think we had to stand up. If you were called upon, I think you just simply had to be prepared for it. I remember that my first class was Contracts and Clark Byse was the teacher. But, whoever it was, he called upon for the first question, Hawkins v. McGee, the hairy hand case, I guess consequential damages was the case he asked about. The first thing you’re going to say when you get called no matter who you are, you’re going to preface your answer with “Well,” everybody is going to do that, I know I would have, and naturally the first few comments were, “Well,” and then an attempt to answer the question, and Professor Byse was waiting for that and so we had even before we got the answer we had about three or four minutes of you know, a tirade about don’t say well, don’t say well, but it was a terrorizing experience, it was. MR. SHELDON: Any other reflections on Justice Souter? MR. ARMSTRONG: I remember very distinctly the, knowing who he was when he was nominated to the Supreme Court. Even then there was a little bit of speculation, I guess even before he was on the bench at the Supreme Court when I read about the Attorney General of New Hampshire, I knew that was, that had to be the member of our class. I didn’t, he was, he had studied I think in England and he graduated from Harvard as an undergraduate probably about two years before I graduated from Chapel Hill, so I think he is a little bit older. He seemed to go with a circle of people who sort of had similar backgrounds, they had Ivy League -24- undergraduate degrees, my recollection is that some of them obviously were more of his age group than they were mine. I didn’t really know him on a personal level. Since he came to Washington, I have been included in a group of his classmates who have had dinner with him on a couple of occasions and we have had pleasant exchanges there. But I don’t think he would have remembered me without that later introduction. I did remember who he was, but didn’t deal with him. Larry Tribe was in the class, but I didn’t know Larry either. He was not in our section first year, if I remember correctly, but he was in our class. MR. SHELDON: Was it a competitive environment there? MR. ARMSTRONG: Very much so. I remember—that might have been one of the things that contributed to the fact that I was worn out at the end of the year, because everybody perceived it as competitive. You didn’t—and you didn’t take exams, you see, until the end of the year. You took a practice exam once, if I remember correctly, at the end of January there was a practice exam in which each of the classes that you were required to take, I think you picked one question on the exam. So there was a three-hour practice exam, five questions, but it didn’t count. So the real—your fate was determined by one set of exams at the end of the first year of law school. The door to work at a big city law firm was opened for me, and it would have been closed if I hadn’t had the satisfactory grades, on the basis of the five, I think, was six exams in first year law school, based on a whole year of work—we had one course we began in January, so one exam was based on one semester. Five exams were based on the whole body of work for one year. And it was really—I don’t think the people at Chadbourne ever saw my transcript, except for those first-year grades. So, and there used to be, you know, stories that go around: you know, you’d better get to the library and read this case first, because you may see when you get there that the case may have been cut out with a razor-blade. And, of course, the Dean— -25- Dean Griswold, who was not a teddy-bear-type figure, he was a fairly intimidating figure—he would tell everybody at the opening lecture that, you know, there would have been a time when I would have been making this speech and I would have told you, “Look to your right, look to your left: only one of you will be here at the end.” But he said, we don’t say that anymore because we figure you’ll all be here at the end because we’ve weeded you out much more carefully than before in the selection process. But yet there was an atmosphere of—I thought I had a little bit of a diversion in a small group of friends where we did things together. One of the fellows was from Maine, so during break periods when the weather was supposedly warmer we would go up to his rustic place on an island in Casco Bay near Portland . Fortunately, my best year, academically, was the first year. And then I looked a lot healthier, but my grades fell off markedly second year, and I think I came back up a little bit third year. I have no idea where I ultimately ended up, because—but I was certainly not anywhere close to a law review or one of the top student advisors. MR. SHELDON: What was the application process like when you were going into your second year and you knew you were interested in private employers? MR. ARMSTRONG: You did a bunch—the firms came to the school to interview for summer associate positions after the second year. As I said earlier, I think—it’s much more organized today, that people work in a law firm after their first year. Not so in our time. Whatever you did after first year—there was no effort, no organized effort, to place people in law firms. Back in Tennessee because of the personal relationship with that attorney, I had a chance to go up and have a little time learning what a title search was like. But second year was different. Everybody understood when you showed up the fall of the second year that you were expected to probably have a position as a summer associate somewhere and do some kind of -26- work in a law firm after your second year. And all of the firms, a lot of the big—I mean, the big firms in New York, the big firms in Boston and probably D.C.—but they sent partners up to interview. And I’m thinking that the focus of those interviews was really more on getting summer associates for the second year, as opposed to getting offers for permanent positions, too. Because the drill was that, I think, as it worked out to be in my case, that, I think, you get a big pool of summer associates and then you would make your offers for permanent associates to the people that had been, with some exceptions, there. But, the big firms came up there, and I probably had maybe three or four interviews. And there was a partner from Chadbourne who was there, and after Christmas I think there was a letter. MR. SHELDON: What was it like with your small-town southern background going to a white-shoe New York law firm? MR. ARMSTRONG: Well, I suspect there probably were other people whose experiences were not that dissimilar to mine. I don’t remember, in my class of summer associates, exactly where everybody came from, but I don’t remember that I felt like I stood out markedly from them. And I don’t—I didn’t really, on a personal level, know the partners that well. So that they knew that I was from the South, undoubtedly they knew they’d never heard of Rogersville, Tennessee, so I’m sure they knew that well we’re dealing here with somebody with a small-town background. But on the resume, you know, the University of North Carolina, Harvard Law School, so, they didn’t have any particular reason to say, you know, “better be careful, cause, you know, he’s small-town.” MR. ARMSTRONG: I do remember, I guess, maybe one little revealing incident that showed I was something of a hayseed. We were going to the firm’s summer outing which was up in Greenwich, and I remember that we were in a big car heading up the East River Drive, and -27- there was a very nice older partner in the car. And I was , I guess, wide-eyed or something, and I’ve forgotten what I said. Somebody said something about how we were going to get up there, and I referred to the East River Drive as the Franklin D. I think—I don’t think I said “FDR Drive,” I think I probably said “the Franklin D. Roosevelt Drive,” because that was the formal name. And he looked at me and said, “We just call that the East River Drive.” (Laughter.) MR. SHELDON: And were you paid there? MR. ARMSTRONG: We were—I do not remember the amount, but that was my first real significant paycheck. We were there for 10 weeks, and we were paid a weekly stipend. And they didn’t—I don’t think they paid maybe quite as much as some of the competitive law firms do these days in trying to attract associates, but we did some organized events, we had the advantage of being in New York, and the firm had a box at Yankee Stadium, we got to see some baseball games. MR. SHELDON: How were the hours? MR. ARMSTRONG: I was able pretty much to do it on a normal-hour basis, the weekends were generally free. And the big, Chadbourne’s firm—the big clients were, TWA was a client, the American Tobacco Company was a client, I think Sperry Rand, which I believe was a defense—or North American—one of the defense contractors was a client. And they gave the summer people—they tried to give you a chance to work with a number of different partners, and you did a few litigation memos for the partner and maybe a discovery issue, something like that. I was sent, I remember, to a bankruptcy hearing out on Long Island, just to basically take notes and come back and report to the partner what had happened. MR. SHELDON: Was it a formal environment? -28- MR. ARMSTRONG: Yup. Very much so. You mentioned yesterday as Casual Friday: there was no Casual Friday. In fact, you would wear a necktie, you couldn’t wear a sports coat, you wore a suit. So I had to scurry around when I was going to go up there. It was a very formal environment. A few chances to—a group would get a chance to go out to lunch at one of the eating clubs sometimes that are on Wall Street. MR. SHELDON: When you went back to Harvard for your third year, I take it the pace slackened from your first two years? MR. ARMSTRONG: The great—the second year had been a much more enjoyable experience. I did not think my second-year exam grades were going to be that different from my first, and I remember the one shock I got at Chadbourne was— you didn’t get your grades in those days until probably about six weeks after the exams were over, and so in the middle of July you’re getting the exam grades. And we had a—second year, if I remember correctly, we had one or two courses, maybe, where we had taken an exam in January, but again, it was this—you go straight through again, and I didn’t think I’d done markedly worse or markedly better than I’d done after first year. Then the second-year grades came out, and I had a significant drop off. But I remember I was feeling much better that summer, and people back home would see me and they would say, “Gee, you look rested, you look better, I haven’t seen you looking this good in a long time!” I’d seen them before I went to Chadbourne to start working after school. So, I had a much more enjoyable experience in second year and third year. Obviously there was a little more of a concern third year because we were in a military situation in Vietnam and our class knew that this figured heavily in planning future careers. The buildup had begun the summer of the second year, so you had that on your mind, and that was sort of worrying your classmates and worrying you, but it was—in terms of—. I was on Moot Court team and we were fortunate -29- enough to advance first to the semi-finals, and then to the finals so that took up a fair amount of time. But academically, I was in a seminar on the FCC which was conducted by Professor Jaffe who was known in administrative law circles. And he was very understanding, he knew I had a moot court commitment and he was very understanding. I remember I didn’t really have to—I was given an extension to get my seminar paper in to him, and the paper was on an obscure issue in the Communications Act, and I didn’t really get started on that until about the middle of April after the moot court work was done. And I remember taking it to him in probably the middle of May, when we were starting our final exams. So there was a little bit of stress right there at the end, from April to the end, but it was—the classroom environment was very nice. MR. SHELDON: What was the cost of Harvard in those days? MR. ARMSTRONG: You know, I’m ashamed to tell you I don’t know. I was one of those fortunate ones where my father took care of it. I was not expected to have a job, I wasn’t expected to come up with the money, and I honestly don’t know. MR. SHELDON: Have you kept up with any of your fellow moot court participants? MR. ARMSTRONG: I have. There were eight of us who were on our team. One of them lives in D.C.—two of them live in D.C., I think. One of them came to D.C. She was Barbara Jacobs at the time I was in law school and she later was Barbara Jacobs Rothstein and she was a Federal Judge in Seattle, I think, for a long time, before she moved back to Washington. At one of these dinners we had, with Justice Souter, Barbara was there and there was another one of the eight who is in D.C. and he is a neighbor of one of the people I used to work with at the FCC so I keep up with him a little bit. One of the members was really responsible for my coming to Washington to work in the Justice Department and ultimately -30- accompanied me to the FCC when we left the FBI. He’s on the West Coast now and I saw him a few years ago. So about half and half, we’ve sort of seen each other since then. MR. SHELDON: What was the name of the individual who you worked with at the Justice Department? MR. ARMSTRONG: David Kinley. I’m trying to remember, I’m not quite sure what David did from ’66 until ’68, but in the ’68 Presidential campaign he was working with a fellow named Bob Finch. Finch, who had been a long-time Nixon associate prior to becoming the Lieutenant Governor of California. David came to Washington after the Nixon administration took office and he was working on Finch’s staff at the Department of HEW. A person with whom David worked in the first year of the Nixon administration, Patrick Gray, became the Assistant Attorney General for the Civil Division in 1971. David accompanied him to the Justice Department. And David and I had kept up a little bit in the three years since we’d been in law school. He knew I was in the Navy, and about the time I was getting out of the Navy David was in touch with me but nothing much was said. I indicated to him that I wanted to give a try at being an AUSA in Brooklyn and that I was enjoying it and I was happy and I liked it-wasn’t asking to do anything else. But thanks to David, I nevertheless got a chance to come down here and interview for a position on Mr. Gray’s staff in the Civil Division. Mr. Gray wouldn’t have just like gone looking in Brooklyn for an assistant district attorney to put on his staff if David hadn’t put the bug in his ear. So that was a difficult decision about whether or not to accept, because I liked it in Brooklyn. I was beginning to get the trial experience that I had sort of chaffed and wanted when I was finishing up military duty. The biggest reason that I resisted going back to Chadbourne and opted for the U.S. Attorney’s Office was that I thought it would give me a chance to have more hands-on experience early on as opposed to just being -31- somebody who carried a partner’s briefcase into the courtroom. I’d actually be in the courtroom, be able to do something. And I was, those expectations were coming true. I was really happy. I was liking that work and I didn’t know whether I wanted to come down here to the Justice Department and switch from Criminal to Civil. Ultimately, some of my really good friends up in Brooklyn, one of whom later went on to become a very successful District Judge up there, now a Senior Judge. I remember he said, you know you really, you’ve got an opportunitygo work on the staff of the Assistant Attorney General. Now you are a very good friend in this office, we don’t want to get rid of you. But he urged me not to pass on the opportunity that had been given me in Washington. MR. SHELDON: Going back briefly, tell us about your time in the military. MR. ARMSTRONG: Well, back up a little bit. The training of the Navy, in those days, people who were lucky enough to get direct commissions as a lieutenant junior grade, you got nine weeks of training at the-what they called the Naval Indoctrination School. Perhaps an unfortunate name, but what it really was, it was in Newport, that’s where the officer candidate school was and it was an abbreviated version of Officer Candidate School. And it was for people who were going to be attorneys. Then after you did those nine weeks, you did seven weeks at the Naval Justice School, where they gave you training in evidence and procedure and the substantive Uniform Code of Military Justice. And the idea was most of us were going to go out, either to ships or into shore stations and practice military law. After Justice School, I was sent to the destroyer group there in Newport for about two months to be a young lawyer-you get some court-martials, and did a lot of legal assistance work for the families of the sailors, some of whom were in Vietnam or elsewhere and they ended up coming to shore duty in Newport. But I did that for two months and then I came back to the Naval Justice School as an instructor. As I -32- said earlier, there were sort of three core courses there: evidence, procedure, and criminal law, where you learn the substantive criminal provision in the UCMJ. Naval Justice School, in those days, in addition to having people like myself who were attorneys, and who were directly commissioned as attorneys, you also had in the navy, they sent a lot of people to the Justice School who were not attorneys, but who were going on a ship. They were going to perform sort of the duties of an attorney: they would advise the commanding officer about if he wanted to have Captain’s Mast. Rudimentary evidentiary procedural requirements that you have to follow. But, so a lot of ships’ legal officers were not lawyers, but they had been trained for about seven weeks in Legal Justice School, and had been trained by people who were lawyers. So, my duty for most of the three years, was doing that. But, in the last year I was there, which was the summer of ’69, the commanding officer said, I’m going to put you on a detail to the Pentagon, the Law of the Sea people. The North Koreans had recently captured the Pueblo, a Navy ship. This was about the end of the-I guess this was in early ’68. My commanding officer said there would likely be a court-martial, apparently, once they ultimately got the commanding officer back. He was going to be court-martialed because some were concerned that he had not followed the proper procedure during the episode. The Navy JAG attorneys who worked on law of the sea matters in Washington were tied up with this upcoming court-martial. And they need, there’s a big principle in the Navy to try to preserve freedom of the seas and you did not want international waters to have a toll charge to transit them. There was some concern that Indonesia and Singapore and Malaysia, I think the countries that were close to the Strait of Malacca where navigational improvements needed to be made would try to pay for these improvements with a toll charge on ships using the Strait of Malacca. And this was a great concern to the Navy which wanted somebody to join a group to work on the issue – there was an economist from D.C. and -33- there was a member of Coast Guard and they were going to send a study group over there-report back to Washington about, you know, what was going on, what might be done, what the Navy could do to take care of the problem. And, just by default, my commanding officer at the Justice School said here’s an opportunity for you to see the world for about six weeks and you know, offering you the chance to do it. So I came to Washington and a little bit of a crash course started to learn principles concerning the law of the Sea and then we spent about two months, partly in Washington, and partly in Singapore, in Malaysia, Japan and other places like this where I really did get to see the world. It was a nice experience. But then I went back for about three months to Newport, and that’s where I finished my three years and headed off to Brooklyn. MR. SHELDON: Did you travel on a military ship or was it commercial airlines? MR. ARMSTRONG: If I remember correctly, we were using mostly commercial airlines. We were not on a military ship or anything. Our first stop, first stop was in Tokyo. I remember when I got to the hotel I was totally exhausted with the date line and everything else and we were just about ready to begin what I hoped would be many hours of sleep and I remember hearing the news on the radio that Warren Burger had been nominated to be the Chief Justice of the U.S. Supreme Court. MR. SHELDON: Do you remember what the ultimate result was from your study? Mr. Armstrong : You know, I do not know. That’s a very good question. I remember turning in a report on our trip. I wasn’t, we weren’t tasked with making a lot of recommendations, if I remember correctly. It was more we spent a lot of time just chatting with people in Japan, people in Singapore, in Malaysia and in Indonesia. And it was more just a factfinding report back. I don’t still have the paper that I gave the JAG Captain at the Pentagon in charge of Law of the Sea matters. And that’s a very good question and I’m hoping that maybe -34- I’ll still, sometime if I see a Navy person I can find it. I hope it wasn’t one of these things that just got put in the file cabinet and was never seen again. But at least whatever happened, I had a chance to see the world. MR. SHELDON: Before we move on to your work in the Federal Government, let’s go back briefly to Harvard,. You mentioned a female classmate. Was it an integrated environment there as far as women? MR. ARMSTRONG: I believe that’s a very huge generational difference. I think I remember hearing that our freshman class which was probably 500, roughly 500 people, I think we had like four 125-person sections. That we had about 5% women. It was no more than that. There were a few, if I remember correctly, who did not stay all three years. I think there were a couple, I’m not going to make a sexist remark here, I guess there was probably some of the male students too, but I think marriage probably made some people drop out. Not a lot, but a few. There was like 5%, there were very few. The ones that were in your class, I think, I can remember maybe out of 125 total in the class, probably between 5 and 10 women. MR. SHELDON: Do you remember it being difficult for women in the job market more so than men? MR. ARMSTRONG: Didn’t know that many then. I knew Barbara Jacobs well, but that was a little later, second or third year. Didn’t really have first-hand evidence that the women students were not going through the same process that I was going through to find a place to work after the second year. MR. SHELDON: Were there any minorities in your class? -35- MR. ARMSTRONG: I really don’t, I can distinctly remember women in the class in my section in the first year. I cannot recall minorities. I wouldn’t want to say there weren’t. But I just really can’t recall them. I need the yearbook to refresh my memory. MR. SHELDON: So let’s go back to your decision to go down to DC. And what was the position that you accepted there? MR. ARMSTRONG: David Kinley and another attorney, Barbara Herwig, and I were personal assistants to the Assistant Attorney General, L. Patrick Gray III. And David was at a slightly elevated position. When he came over with Mr. Gray from H.E.W. he really came as, I guess you would say, the—I’ve forgotten his formal title, but he was essentially an Executive Assistant. He was clearly the first among equals. Barbara and I were on the personal staff but we functioned more like attorneys who were regularly assigned to the Civil Division. But that created a little bit of tension for me in that I was only there one year before we went to the FBI and the one year in the Civil Division was not the happiest of years for me, because I didn’t sense that everyone was on the same page when it came to my role. I was on the staff of the Assistant Attorney General and it looked to the career attorneys and their supervisors that I was in a policy position in which someone who had been politically vetted had been offered that position and was thus to be treated as a political person. Mr. Gray, on the other hand, probably thought of me as coming down here to be very much an attorney. He assumed from my background in the U.S. Attorney’s Office that that’s what I wanted to do, be a practicing lawyer and he thought that, you know, he was in a position to give me a real chance to continue my legal development, this time switching, from criminal which I’d done in Brooklyn, to civil. And he didn’t have a hands-on experience—following of everything I was doing but I think that’s what he thought I was doing. On the other hand, I think the career people in the -36- Civil Division, they look at somebody in my circumstances coming down here from U.S. Attorney’s Office as a special assistant to the politically appointed Assistant Attorney General and they probably felt that I was primarily an aide to the Assistant Attorney General and was really not somebody that was to be given the ordinary assignments of people in the Civil Division. I had a chance to work with one of the Senior Litigators, a gentleman whose last name was Goldbloom, who was a terrific lawyer, and he was involved, I remember, in an environmental lawsuit involving the Tennessee Tombigbee waterway project which was one of the very early cases in which NEPA was beginning to come into play. Did the Army Corps of Engineers comply with NEPA in connection with a project designed to shorten the travel down the Mississippi River to New Orleans? So, I was nominally assigned to some very interesting cases and there was some Vietnam cases coming up and at this point very much so the demonstration cases—sleeping in the park—Lafayette Park, elsewhere. So there was a lot of very interesting litigation there and senior people who were working on it, I was reporting directly to them, working with them. So, if you just looked at it from an outside perspective, it would look like I was having some nice legal assignments and was able to do all of those. The only real thing we did directly in our capacities as members of Mr. Gray’s personal staff would be, we would usually, the three of us, David, Barbara and I, would join at least one career lawyer and another senior political attorney and we would usually sit down and meet every afternoon at five o’clock with the Assistant Attorney General to go over the division’s business. So, in that sense of a way, we were wearing our hat as a person with privileged access to the front office, the rest of the day we were off being lawyers. I think it probably worked pretty well, maybe for Barbara. David was -37- always just clearly getting his assignments directly from Pat Gray. But for me it was a little bit ambivalent but that’s basically what we did. Two unforeseen events occurred shortly after I had begun this particular job in July 1971. I’d been in Brooklyn. I got out of the Navy in March of ’70, worked in the U.S. Attorney’s Office until, for about 15 months; showed up in the D.C. area in… I think it was almost the last day of June of ’71. In, let’s see, in February of ’72, after I had been down here about six or seven months, John Mitchell was going to leave being the Attorney General to go run Nixon’s re-election campaign. MR. SHELDON: That’s an interesting shift. MR. ARMSTRONG: Indeed. And one that was to have many repercussions. Richard Kleindienst was the Deputy Attorney General, and he was nominated to succeed Mitchell as the Attorney General. Now Patrick Gray from Civil Division was going to be promoted to take Kleindienst’s position, as the deputy. So, starting about February of ’72, the prospect immediately arose of confirmation hearings in the early part of an election year before the Judiciary Committee. Senator Eastland wasn’t going to be a problem, but Senator Kennedy, Senator Hart, Senator Tunney; there were lots of people who were certainly just waiting to, you know, have a difficult hearing for the Nixon administration at the beginning of the ’72 campaign. So, it looked like it was going to be a difficult confirmation hearing for Kleindienst and as a subsidiary matter, it was going to be difficult for Gray as well. Immediately everybody’s attention on his personal staff turned towards trying to get ready for the confirmation hearings. And then, about that time, one of these early pre-Watergate bombshells hit. There was the big story by Jack Anderson. He found a memorandum that was apparently written by a lobbyist for ITT. Her name was Dita Beard—the Dita Beard memorandum. The essence of this -38- memo was cited, and for an apparently plausible reason by Anderson, as establishing that her company, ITT, had, in some way, made an important contribution to the Nixon administration or an important contribution to the Republican National Committee to/in connection with the plans to hold the ‘72 Republican Convention in San Diego. The contribution was allegedly in return for settling a pending antitrust act against ITT. MR. SHELDON: And by contribution, you mean a monetary amount? MR. ARMSTRONG: I think it was $400,000. That’s the figure that sticks in my mind, which in those days, I guess, was considered to be a big… but the idea was, but there was the quid pro quo, an alleged quid pro quo. The, there had been an antitrust suit against ITT and it was settled, on terms that were… it was either … it may have been an outright dismissal, I can’t recall it’s either an outright dismissal, which we later learned apparently had directly involved the President directing the Assistant Attorney General to drop the suit. It had been either outright dismissed or it had been settled, on terms that were, you know, considered favorable to ITT. And there was this story running around about this big contribution to the Republicans to facilitate the San Diego Convention. So, this provoked the expected sort of political uproar. It was kind of a preview of coming attractions that was going to happen. Therefore, if I remember correctly, they put on hold the completion of the confirmation hearing for Kleindienst and reopened the record to call Kleindienst back to, because he had been a player as the Deputy Attorney General, he had been somewhat of a player, I think, at the time, in various stages of the antitrust suit against ITT. So there was, he was called back to be grilled about what he knew and what he didn’t know. Apparently it was also, I had forgotten all of this, but it’s coming back, because I have been rereading for another interview, some of the history of this time. But some of the crowd -39- that later got involved with Watergate. Maybe Howard Hunt and Gordon Liddy were some major players when Watergate broke. Somebody tried to track down Dita Beard, who was the lobbyist who had written this explosive memo and, allegedly, she had confessed that the memo was not authentic. In any event, it was a major political firestorm, which put everybody in limbo and it came to the end of April or early May of ’72, and J. Edgar Hoover died. And that was six months before the election. Hoover died. I had no idea that my then boss in the Civil Division, Patrick Gray, might be a candidate to take the FBI position. Subsequently read various things about what was going on prior to that, which probably, had I known it at the time, I would’ve understood this was always something that was in the back of Gray’s mind, that this was a possibility of something he might be doing. But I didn’t know that, just on the basis of any of my dealings with him during the year I had been on his staff. So, this was, Hoover died on like a Monday night and I guess Wednesday afternoon, happened some friends of mine from the U.S. Attorney’s Office in Brooklyn happened to be in D.C. that day. One of them came by, made a social call to me and in my office at the department and while he was there word started coming down the hall that the President has nominated Gray to be Hoover’s successor. I was thrilled about this at the time, because I loved my criminal work, which involved a lot of work with the FBI when I was in Brooklyn. As I indicated earlier, I had been a little bit pulled between, didn’t quite know my role, was having a little bit of an identity crisis in the Civil Division and was not getting the professional fulfillment and satisfaction that I had been getting when I was in the U.S. Attorney’s Office. But I thought, this will be a great, great experience if I get an opportunity to work with the FBI, because I’ll be getting back into the criminal area; be getting back into dealing with -40- people that I worked with in Brooklyn. So this is like salvation for me to get out of the Civil Division and go to the Bureau. And I thought we would have a chance to go. He was going to probably take the staff that had been with him in the Civil Division; and he did. So that’s when we moved up to the Bureau. MR. SHELDON: And prior to that time, when you were still working in the Department of Justice, did you get a sense of policy directives from the Nixon administration, as far as what cases you should pursue or how you should pursue certain cases? MR. ARMSTRONG: Obviously I know there was some of that going on, particularly with regard to the antitrust division and the ITT case. I also know that friends of mine who, some of whom – Bob Kopp who was a classmate of mine – Bob is still over there, I think whom I’d known in law school who were career attorneys in the Civil Division. They told me when I first got down here, they said one of the things we like the most about your new boss and our boss, Gray, he was pretty well thought of by the career staff. They said we like him a lot because he seems to be a stand up guy and the episode that they cited to show that he was a standup guy clearly implicated political directives from higher-ups because he had, they had gotten an injunction. The Civil Division had been responsible for getting an injunction, I think against allowing the demonstrators to camp out overnight. It was either on the Mall or it was in Lafayette Park, across from the White House. But in any event, they had gotten an injunction against the overnight sleepers. Sort of déjà vu on this stuff you read about what’s going on in New York right now. And then there was a little bit of a political firestorm, I guess, which the injunction created from people who were sympathetic to the demonstrators. For whatever reason, apparently, the political people in the White House decided that they did not want to enforce that injunction. So, our classmates said, the thing about your boss -41- that was appealing occurred when he was the official from the department who went before—I think it was District Judge Hart—went before the Judge who had been persuaded to grant the injunction and basically tried to get the injunction withdrawn. In some way, a court appearance was going to be necessary in order to go on the record that the injunction was not going to be enforced. And Bob said, your boss went up there and the anticipated angry reaction from the court did in fact materialize and he took it. Bob Kopp said, we all knew that somebody was going to have to take it and he took it. MR. SHELDON: So he appeared in court himself? MR. ARMSTRONG: He appeared in court and he’s the one who got lectured to, I think, by Judge Hart. MR. SHELDON: And was it particularly unusual for an attorney in his position to do that? MR. ARMSTRONG: I think that, I don’t think the Assistant Attorney General—it’s not unheard of, but it didn’t happen all that much. It was enough of a, it made an impression on some of the career people in the Civil Division that under these circumstances he did it. But, the larger point, the reason I mention that little episode…this all happened about, probably two months before-about the time I was deciding to come to join the Civil Division. But it was about two months before I in fact wrapped up my duties in Brooklyn and in fact came down. So this happened, I remember reading about it in the paper at the time, Assistant Attorney General Gray had appeared before Judge Hart concerning the enforcement of this injunction. I mentioned that because you asked, did I have a sense that there was a lot of political directives. At that time, I was wet behind the ears in D.C. experience. If you ask me that question today, I would say it’s just sort, in my mind, it’s just sort of assumed that political -42- people with appointed positions at the Justice Department will be in touch with the White House. Political people appointed to be Chairman of the FCC would be in touch with the White House. Make sure they’re always on the same page. But I didn’t really, at that time, necessarily think that the department might conceivably run differently for a Republican administration than it had under a Democratic administration. I’ve told some of my friends about one episode in which I was personally involved where I never got in trouble but I should’ve made it known I was being asked to do something I shouldn’t have been asked to do. One of the few direct assignments I got from Assistant Attorney General Gray was, at the time of this firestorm on the Dita Beard memorandum. The reaction, apparently, from the administration was to move the convention to Miami. It was to be in San Diego; it was going to be moved back to Miami. That’s where the Democrats were having their convention that year and that’s where the Republicans had held their convention in ’68 when Nixon was first nominated to run against Humphrey. So, they moved it back to Miami. I’ve forgotten exactly what was said, but one of the things that I think they were a little bit concerned about was whether or not moving the convention would trigger difficulties for the President to get his name on the ballot in some states as the Republican Party’s nominee and I remember, I thought the world of Pat Gray; as I’ll come to later when we talk about the FBI. I think he was a very decent person who happened to be in the wrong place at the wrong time and suffered badly for it. But he was a political appointee and gave me one assignment which I accepted without question, even though it does not seem to be one for the Civil Division to handle. But, in any event, I was a special assistant to a political appointee. And he said, one morning, that he would like me to go to the White House and there was a collection of state election laws that were up there in the Office of the Counsel to the President and they were all collected in one place. -43- Would I go up there and come back and report to him about the requirements for getting on the ballot, in all of the 50 states, if you were the Presidential Nominee. And I think they were probably concerned that moving the site of the convention at such a late hour might create ballot access problems. Now, why, you know, the Assistant Attorney General was worried about that, as opposed to the General Counsel to the Republican National Committee, is now a question that I’ve come to think about as something that maybe I should’ve asked about. But I went to the Office of the Counsel for about two hours. The then White House Counsel was John Dean. And he showed me into this room, and I spent two or three hours making my notes on what the election laws were and took it back, you know, gave them to Mr. Gray. I have no idea, this is like that memo in the Navy on issue of a toll charge for ships passing through the Strait of Malacca, what, if anything happened to those notes. But I mention that, simply because, I certainly knew there was an interaction between political appointees in the department and the White House. I couldn’t say I didn’t. MR. SHELDON: Obviously your perception may have changed over time, but at the time, when you were kind of a model young Republican, what were your thoughts about joining the Nixon administration? MR. ARMSTRONG: Well, I, at the time, I certainly realized, after I got to the U.S. Attorney’s Office, that a professionally run U.S. Attorney’s Office is going to have a lot of people in it who are thoroughly loyal to their work but on election day, they’re not going to vote for the administration that is now their boss. I came to appreciate that. And I know there were a whole bunch of people in Brooklyn, some of whom were attorneys, most of whom I think, were probably the support staff that worked in the office that even lived in Brooklyn. A good number -44- of them, if I remember correctly, were black. I had a very nice personal relationship with them. And I remember some people telling me, who were in the office a lot longer than I had been, is that you know the funny thing about this position is, everybody in this office probably, or the overwhelming majority people of this office—when they vote, they vote Democratic, out of the Brooklyn area. They live in this area, that’s where their views are formed. But the ones that were really concerned with the office felt, or so I was led to think, the office runs more professionally and less like a political patronage shop when a Wall Street Republican is the U.S. Attorney. So the people are sort of split, they like the way the office runs better when the Republicans are in power, but as Democrats, they don’t vote that way. But, at the time I entered government, when I got out of the military, I just assumed that, since I’d been identified with the Republican Club in law school and the young Republicans in college, it probably wouldn’t have occurred to me to try to get a job in the U.S. Attorney’s Office if we had not had a Republican administration. It was the combination of, he’s a Republican and he’s a litigator whom I had known at Chadbourne. Those were the two drawing cards that gave me the gumption to seek to be employed by the administration. And, at the time, this was being, this was occurring in the fall of ’69. I was getting out of the Navy, early ‘70, so all this was occurring in the fall of ’69. You were just beginning to have an end of the honeymoon for Nixon. You were just beginning to have some stirrings of trouble. The silent majority speech, if I’m not mistaken, was about November of ’69, which was just about the same time that I was beginning to think about going into the government. Even if I had had no Republican leanings, there was nothing really, at that point, that would have probably concerned me about the Nixon administration. We’d known Nixon, we’d -45- met him back at law school. He’d been one of these lawyers who came to Cambridge to interview for his law firm and he had met with the Republican Club when he was up there. He was with Nixon Mudge, firm was called Nixon Mudge and it gets a little bit, even a little bit closer than that. After he had met with the Republicans from the business school and from the law school, he invited a group from the club to come have dinner with him in New York. He lived near Central Park, when he was working in New York. So we had probably about five or six hours of dinner and conversation with him in his own place, overlooking Central Park. I’ve subsequently read later that this was one of the things he did when he was in the wilderness between political offices and he was clearly planning to run for President in ’68. This was all occurring around ’66. He did a number of these things. Our group was not unique to that. There was no lasting contact with him. He wouldn’t have known who I was if I’d passed him on the street, outside his law firm. But the combination of several pleasant personal encounters with him and my National Republican leanings meant that I didn’t have a second thought about joining the government during the Nixon administration. MR. SHELDON: What was your impression from that experience? MR. ARMSTRONG: Very, very favorable reactions. All of the subsequent stuff that came out about, you know, he was money obsessed. He spent all this money on the refinements of San Clemente and hadn’t… and the various things that were on the tapes. It was, you know, I guess we’d all just been very, very naïve, but I thought, this is the model. Here’s someone who could make any amount of money in the world he wants to make as a partner in a Wall Street law firm but he’s more interested in; he’s not money driven, he’s more interested in, you know, doing something in the public sector. And I had not, I guess, perhaps, because of partisan -46- Republican leanings from going up in Tennessee, I had never particularly been sympathetic to my Democratic friends who hated Nixon. So, it was fine. MR. SHELDON: And then, so let’s fast forward again and talk about when you heard that you were going to be brought on to the FBI. What did you think your role was going to be there? MR. ARMSTRONG: Well, one of the things that was very reassuring to me about the prospect of the FBI career occurred while I was still in the Civil Division when there was about a period of a week or so between the time that they announced that Gray was going to the Bureau before he actually went up there. And I don’t think that he had even formally, at this point, made it clear that I would have an offer to go with him. But I got some calls in the Civil Division from FBI Agents and they were asking me, they had just read in the paper that this man was going to be their new Director, Acting Director. And they knew I, they had known me in Brooklyn. They knew I had left the U.S. Attorney’s Office to come down here and work for him. So they were calling me up and they were asking me, what about it? And, in the course of those conversations, they made clear that they were encouraged by the appointment and hoped I would go to the FBI with Pat Gray. The gist of what they were saying was, a lot of the people who either presently are street agents, what they call brick agents, have always chafed because of the rigid hierarchy ruling over the Bureau. And a lot of the old guard has captured all of the positions and were working close to the Acting Director’s office and the only thing that gets through to the Acting, to the Director’s office, is what the old guard wants the Director to know. If you’re up there on the staff, you have direct access to the Acting Director. You know, we would love, we would hope that you can be a -47- breath of fresh air and you can be a conduit to make sure that he gets things that are percolating down in the lower ranks of the Bureau that he would never know about. In addition to myself having access to the Acting Director of the FBI, I saw the chance to really do something for the people I think very highly of who are in the lower ranks of the Bureau, with whom I had such a good relationship when I was in Brooklyn. I will have the chance actually to do something that’s really constructive to making this a better organization. I can be a part of a really good effort and there is a real good reason for my existence and there is a real good reason for me to go up there if I get a chance, so I was very happy about it and it did work out. There were after-hours sessions with agent, including some with whom I had a direct contact while prosecuting in Brooklyn and who subsequently had transferred to FBI headquarters. I was a bachelor and they often invited me to dinner in their homes where I was well fed. They said we need to be discreet because if the old guard knows that we are friendly with someone in the Acting Director’s office, this will create an awful lot of problems for us because they would be very upset about that. So we need to do this in a very discreet way. So basically, I would enjoy meals at their houses or go up to the Old Ebbitt Grill or somewhere for dinner. But in any event, I would get a lot of information. Not enough emphasis on organized crime. Too much emphasis on automobile thefts across interstate lines. I would be told, This person is a really good person and let’s get him on the fast track to try to get him promoted. And, this is a person that’s, very calcified, very much old guard, this is a favorite of the people who will be recommending to the Director who should get this position in Memphis, or whatever. “This is really a much better person down there.” To his great credit, Gray, I think, -48- expected that from me. He said that, one of my regular assignments from him, was to go with him every…he didn’t go every week but, typically if he were not out making a speech or visiting a field office, he would go down to Quantico which is where the FBI Academy exists. That is where the agents get their training. He would go down to the academy on Thursdays. And so he said, “You’re my…the person and member of my staff who is responsible for working with me on matters when I go to the training academy. And you will go with me on my trips down there and visit with the academy.” An incidental benefit of having that assignment was, it takes 30 minutes to get to Quantico and 30 minutes to get back. And that’s when I had the chance to tell him anything that I found worrisome, or that had been brought to my attention. I didn’t have any way of knowing firsthand this stuff I was relaying to him, you know, hearsay stuff that I was getting from my agent friends in the ranks. He never discouraged me from raising these things with him and sometimes he would tell me to write a follow-up memo when we got back. Sometimes, I didn’t know until his book came out where, you know, I didn’t hear any more…if I remember about some matter I would raise with him. But he talked about one or two of these episodes in the book he wrote and so it was obvious that he was ready to listen to me about what was going on in the agency. And that was great and I didn’t have, of course, I couldn’t help the fact that Watergate came up and ultimately that is what did him in. MR. SHELDON: What kind of matters did you work on at the FBI? MR. ARMSTRONG: In terms of just being on my day job, so to speak, my regular job, it was a classic…there was no pretense here, as there had been in the Civil Division that I might actually get a chance during my tenure there to do litigation, court room stuff instead. I was a staff assistant. He told everybody and this was in light of his later troubles, this was sort of ironic. I remember one of the first things he said to David and Barbara and me when we met -49- with him, was “I’m looking to you people to keep me out of trouble.” He was nice enough to refer to us in those days as young people. “I consider you to be my eyes and ears and I also consider you to be …” he didn’t use this term, but his body language was “I consider you to be a lot smarter than me and sort of really keep me out of trouble”. And earlier he had said to a larger group, which I think consisted not just of the three of us that would come with him from the Civil Division, but to the larger FBI family that had worked in the Directors’ office and who were still there after Hoover’s death. He said “I’m a military man, I come from a military background and we operate very much on a need-to-know basis. You stick to your assignments and you get the information you need to carry out your assignments, but you don’t worry about the other stuff that’s not on your particular plate.” Anyways, I had a lot of stuff with him I remember dealing with, I think, some of the National Security wiretaps. The Supreme Court had decided a case, just about the time we got there, called the Keith case, which basically said, you had to get a warrant to have a wiretap in domestic, as opposed to foreign intelligence cases…there was a big issue to try to get wiretaps for people for security reasons but not necessarily suspecting or planning to charge them with any kind of a criminal violation. And the Supreme Court settled it in the Keith case that unless there is a foreign intelligence aspect, if it’s just a domestic intelligence aspect you must have a warrant. So there was a need to develop a system for getting those warrants. And I remember, I would be responsible…I wouldn’t actually draw up the application for the warrant but it would get approved by him and then you would carry it down the hall back to the Attorney General’s Office to make sure it got regularly authorized before they did it. I said before that I worked directly with Pat Gray with him on matters .involving the FBI Academy. I don’t remember a lot of things I did. Some of the time -50- during normal hours, I would have the time to put information that had been given to me in my role as a conduit into a memorandum to the Acting Director. MR. SHELDON: In what office building were you in at the time? MR. ARMSTRONG: We were in Main Justice. We were in the suite of offices that had been occupied by Hoover when he was there. The new building wasn’t ready until we had left the Bureau. And our suite, the FBI Director’s offices occupied about one-half of the corridor on the 5th floor along the 9th Street side. The other half of the corridor going all the way down to Constitution Avenue were the Solicitor General’s offices. And in fact, Barbara and I were in the last office in the Acting Director suite of offices. And we were adjacent to the office in which the now Judge Ray Randolph was located…he was on the staff of the Solicitor General. So his office was directly next to ours. MR. SHELDON: And did you have any interaction with the Nixon White House while you were in the FBI? MR. ARMSTRONG: I don’t think…I went one time to pick up a document…I think I was able to piece together from some of these later books what the document might have been. But I know there was one time when the Acting Director called me and he said, “We need to pick up a memorandum from John Ehrlichman’s office and I am going to send you up there to get it and bring it back from Senator Hruska’s daughter, Janet Hruska. She is Ehrlichman’s confidential assistant and she will give it to you.” So I remember being driven up there and going into the…it’s the only time I’ve ever been into the West Wing. And went into Ehrlichman’s office somewhere up there and got this memorandum and took it back. But there was nothing like the…one experience I had in the Civil Division when I had gone to John Dean’s office and sat there and read the law books, nothing like that. I do remember something that fits -51- with the tension I said a minute ago. You are working with somebody that you are supposed to keep out of trouble and then, at the same time, you are supposed to operate on a need-to-know basis. And the tension was manifested in the middle of Watergate when I saw John Dean, who by this time, I knew what he looked like. There was a very large waiting room which visitors enter when they come into the Director’s suite of offices and Dean was sitting out there one day, probably the summer of 1972. I wasn’t really happy to see him there. I thought that he could not possibly be up to any good if he is sitting out there. I have kicked myself many times: What would have happened if I had, sua sponte said something about this in one of the meetings David and Barbara and I had with the Acting Director. We would meet with him a couple of times a week, probably five o’clock in the afternoon in his office. This would usually just be David and Barbara and me. There were other meetings where we were present with him, but career Bureau people, including Mark Felt, Deep Throat, would also be there. I’ve wondered many times if I had said at one of these meetings, “Boss I know you told us to operate on a need-to-know basis and you haven’t given me any assignment relating to this matter, but I don’t know why I have seen John Dean waiting in your waiting room; please be careful.” I wish I would have said that, but I didn’t because he said need-to-know and I was inclined to do need-to-know. And I never got a lot of feedback from my agent friends about…complaining about Watergate. And in fact, in my mind, this proves that there has been a lot of unfair publicity about Gray in recent years. In particular, after Mark Felt was disclosed as Deep Throat about six or seven years ago. But apart from the stunning exception of allowing himself to take some clearly politically sensitive documents, not Watergate documents, but clearly politically sensitive documents from the White House people and destroying those documents, which is ultimately the reason he had to resign as Acting Director, the adverse publicity about Gray during Watergate was unfair. With that one -52- stunning exception, which nobody knew about until it blew up in the paper months later, I think the Bureau’s investigation of Watergate, including Gray’s involvement, was professional. There was a little bit of a delay to make sure that following the money tree in the early stages of the investigation would not have compromised the CIA and there was the famous effort, which is on the Nixon tapes, to try to get Gray to buy into that theory and call off the dogs. There was a slight delay during which he at least was allowing that argument to be made and his critics in the Bureau have seized on that delay as evidence of the fact that he was a tool of the White House. But, I think, and it was evidenced by the fact that I just really never… I would have heard things from my friends in the Bureau, and they were frank with me if they didn’t like something … and I just never heard of any indication that we’re not being allowed to conduct the investigation the way it should be conducted. And I will always think that it might not have been quite as quick, and certainly wouldn’t have been quite as spectacular, but if there had never been a Bob Woodward or a Carl Bernstein and there had never been a Deep Throat, I still think the professional agents would have ultimately gotten to the bottom of Watergate. MR. SHELDON: What do you think the memo was that you went and picked up? MR. ARMSTRONG: I’m going to have to go back and look at Gray’s book and see what it was. I thought I knew at the time. I don’t recall that it was anything that seemed terribly damaging on its face. MR. SHELDON: Did you think it was odd that a senior advisor to the head of the FBI was being sent over to pick up a document from the White House? MR. ARMSTRONG: I think this was probably; this was probably before the damaging evidence about the relations between the White House and the Bureau were coming out. I knew that Gray, I didn’t like the fact that Dean was there in the office. But I didn’t really realize that -53- Gray had had this much cooperation with Dean until his confirmation hearings in the spring of ’73. I guess that having done some of these national security wiretaps, and taking them down to the Attorney General’s office, I didn’t, my antennae didn’t get terribly raised when he said there’s a sensitive document in Elrlichman’s office for you to pick up; at this point, Ehrlichman’s reputation was not damaged; I wasn’t terribly concerned when Gray said this is something that I would really like to entrust to one of my closest aides. It didn’t really hit me that much, he just said, “Go get it.” MR. SHELDON: And, maybe this would be a good point for you to talk about your unfolding knowledge of the Watergate scandal. MR. ARMSTRONG: Well, I certainly, I think from not wearing my FBI cap, not because of anything I knew in the FBI, but just being a citizen, I thought that almost from day one the White House reaction looked suspicious. I just couldn’t believe that… MR. SHELDON: And you’re talking about the White House reaction to the initial story? MR. ARMSTRONG: In June, right after the initial arrests, within a couple of days, it was common knowledge that some of the people that had been arrested had had ties to the Committee to Re-Elect the President. And I just, from day one, I thought this is not just a third-rate burglary. So I think I always thought we may very well be dealing with an administration here that’s in big, big trouble. I think I…but that was not because of anything I knew at the FBI, that was just because of Mack Armstrong, citizen, just watching these people, looking at their demeanor etc. The one time Gray spoke with me directly about Watergate came at what I now realize, but didn’t at the time, was a particularly sensitive point in the investigation. The incidents which were to cause Gray later trouble came within about the first two weeks after the -54- break-in. The first incident occurred when he had that meeting with the CIA Deputy Director, General Walters, who came over and said the White House thinks there’s a CIA connection and they want you to hold off, and Gray did hold off for about two weeks before they followed the money trail which ultimately led clearly to the higher ups. The other incident, which was to become Gray’s terrible problem, came about two weeks after the break in, when he got called to the White House and they said here is this stuff that’s been taken from the safe of one of the arrestees and it’s not related to Watergate but it is political dynamite and should never see the light of day. He took those documents and apparently, about six months later, in Connecticut, threw them in the fireplace. Those were the two really terribly compromising or potentially compromising things that happened to him. What I now realize was five days after he got those documents, nobody on his staff, nobody else knew about that, right about the Fourth of July was the one time he sua sponte raised Watergate with me. I think everybody else was gone that day. I was the only staff-person who was on duty, his secretary called me and she said that Mr. Gray would like you to be his guest today for lunch and he liked the Sans Souci, which is a restaurant up near, it used to be near the White House, but anyway – it was very much of a popular restaurant where a lot of the political people went. And I knew this was a restaurant he liked when he ate out, and he would have different people from time to time as his guests. The only time I ever went with him as a guest was on this occasion. At that lunch he began to talk about his various theories of Watergate, which was at that point about two weeks old. There had been, obviously, the two things mentioned above that I didn’t know about. I also don’t think I knew at the time about an angry confrontation with the agents, on a Saturday morning in his office, in which he accused them of being the source of some of the leaks and was really upset about it. -55- It’s subsequently been written about, but he talked at our lunch about his theories of the investigation. MR. SHELDON: Do you remember any of his theories? MR. ARMSTRONG: This was still at the time in which the investigation of the money trail was on hold because of the concern it was going to lead back to some CIA operations, this was still very much something that was in his mind because he hadn’t yet given the green light for the agents to resume following the money trail of a certain check, I think, that had been found, but he, one of the theories I think I remember was the CIA. MR. SHELDON: And did he explain what that theory was? MR. ARMSTRONG: I think that if they pursued the investigation to its fullest length, they would uncover a CIA op…a very sensitive CIA operation. That was the theory. He apparently did not have his antenna raised because of the separate meeting at the White House where he got those documents. But this man was a military man, he obeyed orders, was very loyal, and properly viewed himself as a patriot, so I think he, I don’t think for one minute when they first mentioned to him that if he pursued this investigation he may uncover a sensitive CIA operation, that he didn’t take that seriously, and didn’t think that there was a real possibility that that could be true. I think he did. And the meeting at the White House about the politically sensitive documents didn’t affect his thinking. I think that he felt there were a bunch of things going on simultaneously. He didn’t see it all as one great big conspiracy. MR. SHELDON: You don’t have any reason to suspect he was actually in the loop of the conspiracy? MR. ARMSTRONG: No. Absolutely not. No, I do not. I think he was a victim of it. Obviously, he made mistakes, but not to the level of becoming a conspirator. And he was -56- concerned when the thing began to unravel, he was clearly concerned about, I think he was humiliated and he was very embarrassed by some of the things he had done and he really didn’t want it ever to become known that he had taken those documents, because there were various back and forth conversations when the thing was coming undone in the spring of ’73 in which he was trying to tell Ehrlichman to, you know, let’s keep that to ourselves, so I mean there’s some unattractive dealings that he was involved with, but never did he become a party to the conspiracy. MR. SHELDON: What were the documents that he took? MR. ARMSTRONG: One of them dealt with Chappaquiddick and I assume it was some attempt to manufacture stuff to try to make Senator Kennedy look bad. The other one was apparently one which tried to implicate the Kennedy administration in the assassination of the Diem brothers in South Vietnam three weeks before Dallas. I think it was, I think those were the two, was to try to show that the administration had something to do with the Vietnamese revolution, and those were the two general areas that were covered. MR. SHELDON: What was your understanding of the context for giving it to the FBI Director? MR. ARMSTRONG: My guess would be that they were obviously embarrassing to the White House if it were, if… I assume they were fake, I assume they were things that Hunt and Liddy had manufactured and if it had become known that there were people with an office in the White House or in the Executive, the Old Executive Office Building, who were spending their time doing stuff like that, I assume that would have been political dynamite. And, obviously in a professional investigation, if you’re dealing with, what are the contents of Hunt’s safe, and you are going to represent, as the White House was trying to represent, that it had turned everything -57- over to the FBI, they could say they’d turned everything over to the FBI if they turned almost everything over to the professional agents who were investigating the crime and they turned over some other hot stuff that they didn’t want to leak to the Acting Director, because he was the FBI too. So I think it was important to them to be able to say that they had turned everything over to the FBI. But these documents were, if they had leaked, would have been obviously very, very sensitive politically. One other thing I want to say about this luncheon and the timing of this luncheon, is one of the things I learned after Mark Felt was revealed as Deep Throat, at the very time Mr. Gray was about to die of pancreatic cancer. It was within about, a little more than a month after Felt was revealed. I hadn’t stayed in touch with Gray so I didn’t know this, but I learned shortly after they had revealed that Mark Felt was Deep Throat, that he had some very nasty things to say about Pat Gray, that Gray was seriously ill with pancreatic cancer. Ten days before Gray died, George Stephanopoulos’ Sunday morning program, This Week on ABC, they had had an interview with him in which they were getting his reaction to things that had been said by Mark Felt. Gray had written copious notes and was ready to come out with a book, and apparently he called his son, who was a writer, in New England, and said Ed, I wasn’t going to write this book but I think, in light of what we’ve seen, the Mark Felt revelations, we’ve got to get back in the book-writing business. So a book was published, based largely on his notes, after he had died, the book was published about three years ago. In any event, this book which was, I think written by him based on his notes, with the final part written by his son. Our lunch at Sans Souci took on new significance for me in light of his book. In his book, he discussed a matter where I had been a conduit for information from the agency and the upshot of the information was that he had heard from me that agents told me that he was not getting the straight scoop about what -58- happened during a protest demonstration on Capitol Hill in ’72. There had been an incident involving some FBI agents and maybe some… I don’t know whether there’d been, there weren’t gunshots fired but there’d been an unpleasant confrontation with FBI agents and some of the demonstrators; for some reason the career people in the Bureau didn’t want him to even know that. And as a result of my being a conduit, he found out about it and he apparently ordered an investigation and ultimately the investigation convinced him that the head of the FBI field office in D.C. had not leveled with him and he transferred this head of the FBI office in D.C. to St. Louis; it was a lateral transfer, he was still the head of the office, but he was transferred out of D.C. That later became something of a lightning rod in the Watergate-related attacks on Gray because the accusation was that he had transferred this official because he was doing too good a job organizing the Watergate investigation. So Gray spends a lot of time in his book trying to demonstrate the circumstances that led up to this transfer, and he says in his book that the impetus for the investigation leading to the transfer was this little bit of information that had been passed on to him by me. All of this occurred in, soon after we were in the Bureau in May and June of ’72. The luncheon with him at the Sans Souci, was right before the Fourth of July. One of the things that is discussed in his book had also occurred earlier the same day. He’d been meeting with Mark Felt and some of the other professional FBI people, and they’d been discussing this request to hold off on the investigation because it might uncover a CIA operation. Gray lifted the hold, told the agents to go full speed ahead on following the money trail. There was no longer any reason to hold up because of fear of, that they would uncover a CIA investigation. I may be reading way too much into this, but it struck me as a little bit odd that the one time he sua sponte raised the Watergate issue with me was just after he had come out of that meeting with the career FBI people, and realized there was some tension possibly arising from -59- the fact that they were not going full speed ahead to try to trace down this money. And he had just had this little episode in which he learned that agents were concerned that he wasn’t getting the straight scoop on the demonstration that occurred on Capitol Hill. Now that I can look back on it, I have come to think that what Gray was waiting to hear when he raised and started talking out loud about Watergate was whether agents had been complaining to me about the Watergate investigation. He knew that what…if I had heard anything, which would suggest that the agents at street level didn’t think they were being allowed to investigate Watergate properly, I would have told him. And I think he was looking for some sort of evidence, if there was any, that his actions as the Director were impeding the Watergate investigation. This was probably a dog that didn’t bark exercise, because I certainly didn’t bark, I had no reason to believe that my friends in the Bureau were concerned that they weren’t being allowed to do their job. MR. SHELDON: Why would a potential CIA investigation prevent a domestic investigation into Watergate? MR. ARMSTRONG: This check apparently, this controversial check, part of the tracing of the check involved Mexico. I think it may have been one of those deals where it was laundered back and forth but there was a Mexican angle on it. I don’t remember the specific details, but there was a Mexican angle to this check. MR. SHELDON: And this was a check made to the Committee to Re-elect the President? MR. ARMSTRONG: I believe it was a check that involved a man who just died within the last month who was the Midwest finance chairman for the Committee to Re-elect the President, fellow named Kenneth Dahlberg, D-A-H-L-B-E-R-G. Somebody made a check, I guess, to the Committee to Re-elect the President or maybe they made it out to Kenneth -60- Dahlberg and according to Dahlberg’s obituaries—well Dahlberg must have endorsed the check. Somehow or other I guess the check, I don’t know the specifics, but it ended up in either one of the burglar’s safes or either it had been cashed and the proceeds of that check had been used to pay some of the burglars from Miami who were the ones who actually were in the Watergate, but I, I should have a little bit clearer connection on it but it was, if you would trace, follow the money, if you follow the money because of that check there was a clear path linking the actual arrested burglars and the committee to re-elect. It made the link. MR. SHELDON: You’ve mentioned Mark Felt a couple times, can you tell us about your interactions with him, your perceptions of him and if you had any suspicion? MR. ARMSTRONG: That’s one of my favorite subjects. He was, his manner was to be extremely agreeable and flattering in the presence of his superiors. That may be just a trick he picked up from having gotten as far up in the Bureau as he did when Hoover was there and the word was that particularly in his later years Hoover liked people who were not disagreeable or not, don’t raise objections to the Director, you just say yes sir, yes sir, yes sir. But for whatever reason, whether he was just sort of trained that way or that was the way he was, he was very nonconfrontational in any kind of dealings he would have with his superiors or perceived superiors. And he perceived, since I was on the staff of the Acting Director, with David and Barbara, he had to perceive that we were to be treated as the Acting Director for purposes of that interaction. Gray hired a chef who was from the Philippines and he began to have lunches in the Acting Director’s dining room; he would invite to these lunches different people on different days but, we weren’t there everyday but we would be invited, David and Barbara and I would be invited and some days Mark Felt would be invited and some days there would, there would obviously be days in which we were both invited on the same day. So my interaction with Felt was… -61- generally consisted of these periodic lunches that were hosted by the Acting Director with about six people there. Pat Gray also gave me the assignment to attend a meeting Mark Felt hosted each week in his office right next to the Director’s office. At this weekly meeting, the Assistant Directors in D.C. from the various divisions report about things in their respective divisions. Gray said he had told Mark he would like for someone from his office to sit in on those meetings. So my dealings with Mark Felt in a face-to-face way were either at occasional lunches which were sort of quasi-business, quasi-social, in the Director’s office or at these weekly meetings he would hold in his office. So I certainly knew who he was and I never in my wildest imagination would, when rumors would come out that he was “Deep Throat,” assuming that Deep Throat had really operated the way the book says Deep Throat operated with meetings in an underground garage at night and cigarette smoking, I just, it was inconceivable when people said Felt is the leading suspect. It was just inconceivable to me that he could in fact have been Deep Throat. I did not particularly trust—I certainly didn’t trust him. He was a major problem according to my friends and his presence was a major reason that they thought there was a need to have a back channel to get information to the Director’s office because they didn’t trust Felt to tell Gray everything they thought Gray ought to know. So I always… MR. SHELDON: Why did they think that, because he was a Hoover man? MR. ARMSTRONG: It was that he was so much a part of the old guard that if there was any sort of thing that the younger agents would like done, that would reflect some major changes in the Bureau and by implication would suggest that in the last years of Hoover’s regime the Bureau hadn’t been working as well as it should have been working, its priorities were all messed up; this is something that in their view a person like Felt would not want to surface. He would want to stop it, because he wanted to convey to Hoover’s successor that everything was -62- fine. No big changes needed to be made, let’s go on with business as usual. So the more progressive, if that’s the right word, younger agents, they clearly perceived that he was the old guard and he was an obstacle to reform and so, I always privately viewed him in that light. I had no idea at the time about the huge turmoil of the White House saying he’s leaking and you’ve got to fire him and Gray was, you know going to bat, trying to defend him and all the rest of this stuff. I just knew in terms of my interest in trying to improve the Bureau as an institution, improve its priorities and I perceived that Felt was an obstacle. I was completely cordial and didn’t in any way try to pull rank on him. I considered myself to be a subordinate staff person who happened to be working for his boss, but I certainly didn’t consider myself to be his superior. I was always very cordial to him and he was very cordial to me. I didn’t trust him, but I wasn’t one of those people who thought that he had to be moved out of the way; I certainly thought that if we stay here for any length of time and are successful in making some changes that will improve the Bureau, he’s going to have to be dragged kicking and screaming to cooperate. After Felt was revealed as Deep Throat and things he had said about Pat Gray became public, the one terrible regret I have about a person like him concerns his approach. If he was really unhappy, I wouldn’t have expected him to betray unhappiness around others, since his temperament was to be very deferential to the Director when anybody else was present, but at some point if he thought some things were not being done correctly in connection with investigating Watergate and he thought Gray was just a complete tool of the White House and couldn’t be trusted, he at least owed it to Gray, who trusted Felt and stood by him when higherups accused Felt of being a leaker, to discuss his concerns man-to-man in a private meeting between the two of them: “Boss, some things are going on in the way this Watergate investigation is being done which aren’t in keeping with the best traditions of the Bureau and -63- we’re unhappy about this, or this, or this.” We know from later reports that Felt had lots of perceived grievances about the way the investigation was being conducted. But give the man a chance to show that he can do the right thing. Gray was an interesting person. Yes, he had ties to Nixon and he was a military person and did kind of have a tendency to obey orders and some of his critics would say, perhaps with some justification, he had a tendency to be too trusting, too naïve and too believing of people like John Dean and other people that he shouldn’t be believing. But he did really care about the Bureau; I know Felt was unhappy with him because he was out making speeches all the time but he did care about the Bureau and I think if somebody like Felt who had grievances, had really confronted him in a respectful way in the privacy of his office and given him a chance to shape up so to speak, history might have been a little bit different. So I always thought it was wrong if Felt was unhappy, as we now know he was, for him never to have really confronted Gray and given Gray a chance to try to do it the way Felt thought it ought to be done. My last personal dealing with Felt which confirmed my belief that he was always to be viewed with suspicion and was never going to be somebody that was in my fan club occurred shortly after Mr. Gray resigned. Before coming to my last unpleasant encounter with Felt, I will spend a minute on Gray’s last day. This was a Friday in late April, 1973, that’s the day all hell broke loose. It was reported that he had destroyed certain documents, and he was out of there by Friday afternoon. My last assignment before he left was to get him the telephone number for the law firm of Steve Sachs, which subsequently represented him in various investigations he faced after his resignation. I mention this because I could never have imagined one year earlier when I was thrilled about going to work with the Bureau that my FBI career would end on this note. I was, however, still at the Bureau the next week on Friday, cleaning out my own office and… MR. SHELDON: Was it just assumed that you would have to leave too? -64- MR. ARMSTRONG: I, some of my friends that weekend, they said, well Bill Ruckelshaus from EPA is coming over as the new interim Acting Director and maybe it’ll be possible for some of you who were on Gray’s staff to stay a little while before you leave. I didn’t think there was a chance that would happen and it was fairly obvious to me that anybody associated with Gray would be viewed as damaged goods. Although Gray had a lot of critics in the Bureau from the old guard, there were elements in the Bureau who wanted to give him a chance and who did like some of the things he was doing but even they were disillusioned by the document destruction. Even if he didn’t share the documents widely within the Bureau to protect their sensitivity, he just can’t destroy something that’s conceivable evidence and it was sort of a sensitive thing – cleaning out the office was particularly sensitive, because you couldn’t take anything out of that office without having it potentially checked by career FBI people. And I had contacts with friends of mine in the Bureau and their phone numbers and their office numbers, etc… It was obvious that if you had access to my office and my rolodex, etc… that, and you were of a mind to try and find this out, people like Mark Felt could really find out if there had been people in the Bureau who had been making backchannel communications to the Acting Director’s office. Knowing that I was subject to an inspection when I took stuff out and there were lots of scraps of paper on my desk with people’s names, I undertook to tear up this sensitive information while still at my desk, in an effort to protect the identifies of my sources within the Bureau. And apparently I was generally successful, although I missed one relevant scrap of paper because I heard weeks later that somebody’s name had not been destroyed and this person had been called by the old guard and questioned about his communications with Armstrong. My secretary who had been a hold over from the old days in the Bureau had grown to be my devoted friend and she was totally loyal to me. On the morning of my last day in the office, she called -65- me and said, “Mr. Felt’s office has called and they want to know what your intentions are.” And I said, “Well Nancy, you can tell them that this is my last day in which I’m coming in to work and I’m clearing out my office today and after today I will be on a short period of leave before I assume a new position outside the Bureau.” At this point I didn’t really have a new position, although I was thinking about applying to the FCC. I went to lunch and came back from lunch and I couldn’t get in my office and while I was at lunch Felt had the lock changed for my office. He didn’t even wait for the end of the day. So that was all I needed to know to confirm what I had assumed all along which was that Felt doesn’t have any use for me and as soon as I no longer have the umbrella protection of working for his boss, life is going to be very unpleasant for me and the lock changing confirmed that. MR. SHELDON: Did you or do you still feel betrayed by his actions at all, when you found out that he was Deep Throat? MR. ARMSTRONG: No. I don’t feel betrayed by it at all. I can certainly understand why Mr. Gray, in the very brief period of time when he was still living after Deep Throat was revealed, would feel betrayed for the very reason I mentioned to you a minute ago. Specifically, Gray must have thought here’s a guy who never gave me any indication in our face-to-face dealings that he didn’t like the way I was conducting my job as Acting Director and now I know that he did have all these grievances. Yes, I would have felt betrayed if I had been Gray, but certainly I didn’t personally feel that way. MR. SHELDON: Do you feel his actions were wrong or that he was somewhat justified? MR. ARMSTRONG: Well I do feel that before he did anything he should have given Gray a chance to do things the right way. I’ve been working in the past few years with a -66- freelance writer, Max Holland, H-O-L-L-A-N-D, and he’s done some pieces, I think on Lee Harvey Oswald, and the Kennedy assassination. He got very interested after the Deep Throat revelation about Mark Felt, in exploring Mark Felt’s motivation for acting the way he did. Max Holland was coming at this from an angle which was somewhat critical of Felt; he was not joining the school that viewed Felt as a patriot who risked his own career to save the country. He was either going to do a very long article or a relatively short book and he asked me for a lot of background information which I was happy to give him and he sent me an email just a couple days ago advising that his book is going to come out in February. I think it will be apparent from that book that there is reason to be critical of Felt and his motivation. The career professional FBI, I suspect, there was a huge divide between people who thought he was a potential savior and a lot of other people who thought he was a large part of the problem and that his motives weren’t good. My fundamental gripe with him is what I told you. If we could rewrite history and Felt had directly complained to Gray and then didn’t get any indication from Gray’s reaction that Gray was anything but a political pawn of the White House and all of Gray’s professed interest in the FBI as an institution was subordinate to that, if that had in fact been what happened then I would certainly understand how a person in Felt’s position doesn’t have to sit there and take that. At least two courses of action would then have been open to him. Ideally given differences with his boss about the conduct of the Watergate investigation and having been unable to get things changed the way he wanted, he could have resigned on principle. Or perhaps it would then at least have been less blameworthy for him to follow the course he did. The thing that’s so interesting about Felt to a reader of Max Holland’s book is, even in spite of all of his reservations, suspicions and dislike of the White House he apparently continued to harbor some desire to be the Director. He was disappointed when he wasn’t named Acting -67- Director immediately after J. Edgar Hoover died, but this book indicates that a lot of Felt’s motivation was to try to undermine Gray, make it impossible for Gray ever to be the permanent Director of the Bureau. He apparently still nurtured dreams that he might get the job himself. So Felt was not completely prepared to blow the whistle on the White House because he was still holding out hope that the White House might turn to him to be the permanent Director. MR. SHELDON: As Watergate events unfolded or as the investigation really unfolded, how would you learn about things? Would you hear them backchannel through your FBI contacts or would you just read it in the newspaper and learn it from everyone else? MR. ARMSTRONG: I heard, as I said to you before, the discussions that I had with my backchannel people, they were talking, they were going forward in a context where I don’t think either they or I believed that Gray’s vulnerabilities in terms of Watergate were as great as they proved to be. So they were going forward on the premise that he’s going to be here for awhile, probably as the Director and what kind of Bureau will we have in terms of our policies and our priorities. There was, apparently they didn’t have any indication that the investigation wasn’t being handled properly. So no, I didn’t find out much of anything at all from back channels inside the Bureau. I found out, I knew what everybody else knew who read the Washington Post in the morning. I didn’t know much more than that. Now, I certainly said earlier that I had seen John Dean in the Acting Director’s office so I knew there had been at least some communication which made me suspicious and that had gone back to the very beginning of the investigation. But it was when he was finally nominated, my boss, to be the permanent Director in February of ’73, about three weeks after Nixon’s second term had begun. The confirmation hearings began in late February and March of ’73 and all of this was before the famous sentencing hearing at which Sirica read a letter and that was really when things began to completely blow up. But -68- during the Gray confirmation hearings before the Judiciary Committee, there was a lot of testimony about his dealings with the White House and one of the things that came out was that he had allowed John Dean to see the files, the 302’s which were the FBI documents in which an agent interviews someone who is a potential witness in an investigation and they reduce the interview to what was called a 302; these files in the investigation had been shared with Dean. This was developed during the confirmation hearings and it was also pointed out, I think it was developed in the hearings that Dean had sat in on the interviews of White House personnel. The things that I wish a professional FBI investigator could have talked Gray out from allowing, or at least talked about it with him before it was allowed. All this began to come out during the confirmation hearings. So, I really began to know of the vulnerabilities, some of the juicier problems during the confirmation hearings. MR. SHELDON: And those confirmation hearings were just a few months before you ultimately left? MR. ARMSTRONG: Those confirmation hearings were in February and March of ’73. The last day of active testimony was when Senator Byrd of West Virginia picked up on something which we had noticed when we were preparing Mr. Gray for these hearings; at this point, my colleagues, David Kinley and Barbara Herwig and I, were beginning, under the needto-know approach, to get access to the files. In the course of going through the files to try to prepare him for the questions… MR. SHELDON: Are you talking about the Watergate files? MR. ARMSTRONG: Yes. At that point we are talking about some of the actual Watergate files. MR. SHELDON: And that was the first time you had seen those files? -69- MR. ARMSTRONG: It’s the first time I had seen the Watergate investigation in real specificity. It was apparent to us, in the course of doing our homework, that Dean had been caught in a flat-out lie to the FBI, concerning the safe, Hunt’s safe in the White House office building. Whether Hunt had had an office in the White House? That was one of the questions. It was apparent from the files that Dean had not been truthful. The only real issue was whether anybody on the Judiciary Committee was going to have the wits to elicit all of this damaging information in the public hearings. And whether it was because of a leak or one of the other controversial things Gray had done, which upset the White House greatly, which was to share the same files that I had seen—he had shared these with the members of the Judiciary Committee who were conducting his confirmation hearing giving them an opportunity to look at the files. So, by one means or another, I don’t know whether it was because of what he saw in the files; Senator Byrd did put his finger on the problem with the Dean statement to the agents. And he asked the question, “Well, it appears to me, Mr. Gray, that the White House Counsel lied to the Bureau.” And, this was a very dramatic moment in the hearings. And Gray said, “Senator, it appears that way,” or words to that effect. And, at that point, little did we know everything else, at that point, that was happening at the White House. But all that happened near the end of March. And apparently it was just a couple of days after that John Dean got his lawyer and made his decision to turn against the President and reveal what he knew. A week or so after that explosive testimony, the word came out that, I think the word had been passed to Gray – we didn’t know about it personally, but the word was passed to him that after a head count of the committee, he didn’t have the votes to be confirmed. So, around, in the early part of April, he withdrew as the nominee to be the permanent Director. But, at that point, he was going to stay on until the permanent Director was confirmed. He was a lame duck but -70- still the Acting Director. About three weeks after that, I guess because Dean had begun to spill the beans to the investigators, it became known that there’d been this problem with the documents from Hunt’s safe that had been given to Gray and when that came out his support completely collapsed. Even the people in the Bureau who had looked upon him as good Pope Pat, so to speak, reforming the Bureau and bringing an element of fresh air, no longer supported his continuation as the Acting Director. As one of my agent friends said, you just can’t have the Director of the FBI destroying documents. He had to quit and did towards the end of April ’73. And then it was the next week that I had the lock on my office door changed by Felt. MR. SHELDON: And, when you were preparing him for this hearing, were there senators you were worried about, like Byrd? MR. ARMSTRONG: Well, from the very beginning, Byrd had been hostile. He had been, for whatever reason, whether the old guard in the Bureau had gotten to him and just soured him on Gray. Whatever the reason, he was hostile from day one. I thought the more difficult testimony would come from questions by Senator Kennedy, Tunney, Senator Phil Hart of Michigan. Senator Eastland was a Democrat and the Chairman, but he was sympathetic to the administration from Mississippi, more conservative oriented. So, he was not a problem. But Senator Ervin was on that committee; he was something of a problem. But while we were doing the work, trying to prep him for the hearings—we weren’t particularly trying to, you know, prep him vis-a-vis the individual senators. We were just trying to make sure that he knew what was in those papers in the files. Like what were the areas that were potentially very explosive. MR. SHELDON: Did you ever have a moment after you left the FBI, or as you were leaving where you kind of sat back and realized everything you’d just been swept up in? -71- MR. ARMSTRONG: Yes, particularly the last day after the blow up about the destruction of the files… that was a very dark, dark moment for me and I assume for Dave and Barbara as well, because I remember that our boss on his last day on the job, he was sending me to get Steve Sacks’ phone number. This town was so interested in Watergate and all of the stories that had been printed now seemed to be true. I believe it was also on this day that it came out that there’d been a break-in in Daniel Ellsberg’s psychiatrist’s office. There were so many people on the corridor in the Justice Department outside the Director’s office, on that suite of offices. It was wall-to-wall with reporters and I remember distinctly thinking, “I don’t wanna leave my office until this crowd disappears because if anybody walks out of these offices, we are immediately going to be jumped upon by reporters and so this is grim.” I thought I have made perhaps a terrible career choice in not staying in the U.S. Attorney’s Office as an AUSA until I am ready to look for an opportunity to enter private practice. Instead, I have perhaps gotten myself in a situation where I’m very damaged goods and I may not have a chance to be doing much of anything in the way of a legal career. I didn’t think there was going to be a problem where I would have to ward off allegations that I had done anything wrong, although after I left the FBI, there were moments when I even wondered about that. I was never called to the grand jury, but I was called in to the Special Prosecutor’s Office. Not so much because of Watergate, but because of some break-ins. There apparently had been some domestic intelligence break-ins which Mark Felt and some of his friends in the Bureau had ordered and apparently never got clearance from Pat Gray about this; never told him about it. But the end result was that Felt and Gray and another FBI career official, they were indicted for these break-ins. And I was questioned by the Special Prosecutor’s Office about what, if anything, I knew about all this. -72- So, while I didn’t really think in April of ’73 that I was going to be in any personal trouble. I mean, I knew it just wasn’t going to look very good on a resume what had been happening. It had been an enormously exciting time, but it’s not the kind of thing you want on a resume, so had it not been for this lifeline that Chuck Lichtenstein provided me to the Federal Communications Commission, I don’t know what I would’ve done. Very shortly after this tumultuous departure from the Bureau, I was on pace to start working with the FCC, so it worked out okay. MR. SHELDON: Well, let’s take up on that our next session then. Thank you.1 1 Several months after this interview session, the publication of the book “Leak-Why Mark Felt Became Deep Throat”(University Press of Kansas 2012) by Max Holland refreshed and corrected Mr. Armstrong’s recollection of an incident concerning the exchange of a document between the FBI and John Ehrlichman’s office at the White House, as discussed earlier in this session. Mr. Holland refers at page 221 in the Notes to his book to a decision by Acting Director Gray in August 1972 to provide John Ehrlichman with the FBI’s file on Henry Kimelman, who at the time was the finance chair of the McGovern campaign. Mr. Armstrong now believes that his assignment was to deliver an envelope to Ehrlichman’s office instead of picking up one from that office, contrary to his recollection at the time of the interview. He is also now convinced from the timing of this delivery in August 1972 that the envelope in question contained the Kimelman file although Mr. Holland’s book is the first and only source of his information on the likely content of the envelope. -73- ORAL HISTORY OF DANIEL “MACK” ARMSTRONG Second Interview – April 19, 2012 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Daniel “Mack” Armstrong and the interviewer is Matthew S. Sheldon. The interview is taking place at the Law Offices of Goodwin Procter on April 19, 2012. This is the second interview. MATTHEW SHELDON: Mr. Armstrong, thank you for doing this. When we last left off, we were talking about your transition over to the Federal Communications Commission, and I was wondering if you could recap for us how that came about. MR. ARMSTRONG: When I was preparing to leave the Bureau, one of the – I wasn’t sure what I was going to do – one of the staff people at the Bureau in the last few months – I was there with a fellow named Chuck Lichenstein. He was – he came over on a detail from the FCC where he was a top advisor to Chairman Burch. I spoke with him about the possibility of going to the FCC, and he very kindly arranged an interview for me with the General Counsel of the Commission and that led to my accepting an offer to go there. I left the Bureau in May of ’73, and I began working at the Commission in July. MATTHEW SHELDON: Who was the General Counsel at the time? MR. ARMSTRONG: Jack Pettit. MATTHEW SHELDON: And was that the only interview you had to do? MR. ARMSTRONG: I talked to Jack, and he had an interest in me because having worked in the U.S. Attorney’s office, and then having worked in the Bureau. I certainly struck him as a person with a prosecutorial background, and he was under some pressure within the Commission to get somebody that could oversee enforcement of the Citizens Band Radio procedures. That was a huge problem for the Commission, and the engineers in the field who -74- were responsible for enforcing the Citizens Band regulations were complaining to the General Counsel that they were not getting enough support from the GC’s office. So, when I had my interview with Jack, he said he thought I could fill a real need in the office in working with the engineers. He then asked me to, after we finished that interview, to have an interview with then Commissioner, later Chairman, Dick Wiley. So, I did have an interview with Jack Pettit, and I had an interview with Commissioner Wiley. MATTHEW SHELDON: And coming over at the time you did, from where you did, were there any questions about Watergate, or any of the Bureau’s activities in the interview? MR. ARMSTRONG: Well, ironically, my very first day at the FCC happened to be the same day that the disclosure went public, that there were tapes in the White House. So, a former exciting year, inescapably carried over, but if Jack or Commissioner Wiley or anybody else said, “hey he’s damaged goods, we better be careful about him” they didn’t tell me about it. MATTHEW SHELDON: What were your impressions of the Commissioner when you met with him? MR. ARMSTRONG: My impressions were such that I’m not at all surprised with his subsequent success, first as Chairman and then as the senior partner in a very successful law firm. I’m not at all surprised. He struck me as a go-getter, magnificent in knowing peoples’ names, never forgetting – he didn’t seem to ever forget a name that he met, just that we had a little bit of a personal connection. His wife was from eastern Tennessee not too far away from the county and town in which I grew up down there, but we seemed to hit it off very well. He impressed me. MATTHEW SHELDON: Tell me a little bit more about Citizens Band radio that was an issue at the time. What was the background on that? -75- MR. ARMSTRONG: It was used a great deal if I remember correctly. It’s now obsolete, I think but it was used a lot by truckers, and there was a detailed regulatory scheme, and I don’t remember all of the specifics of the violations but there were a great number. I think in the area of unlicensed operation, and we had what we call Part 15 devices at the FCC and those devices, like a power opener for your garage, it’s a small power you were allowed to do without a license. The Citizens Band people were transmitting in excess of the power permitted for unlicensed operation, and so the big problem was that they were violating the rules – they weren’t getting a license. MATTHEW SHELDON: Is that where CB radio comes from? MR. ARMSTRONG: Yes. MATTHEW SHELDON: What was your first position? MR. ARMSTRONG: I was placed in the division where I would come to spend most of my time at the FCC, the litigation division of the office of General Counsel, and I had two-fold duties and was wearing two hats: one was – I would spend time working with the enforcement bureau on the CB radio violations and that mainly would involve either an administrative sanction or in the really serious cases, working with an Assistant U.S. Attorney out in the field to bring either a Civil Injunctive proceeding to cease the unlawful operation or criminal prosecution in a really serious case. The other hat I wore in the litigation division; the then Chief of the Division, Joe Marino, would assign me an FCC case that was in the Court of Appeals, and as a staff attorney, I would brief and usually argue it. Sometimes the person who wrote the brief was not given the argument but that was the idea. MATTHEW SHELDON: Was this your first experience with the Appellate Court process? -76- MR. ARMSTRONG: No. When I was an Assistant U.S. Attorney in the Eastern District of New York, most of the work there was in the trial court, but some of the assistants expressed the desire to go to Second Circuit when a case, in which they had been involved, later became the subject of an appeal. So, I had had some experience arguing before the Second Circuit when I was in the U.S. Attorney’s office. MATTHEW SHELDON: Can you give us a flavor of what it was like arriving at the Federal Communications Commission in 1973? MR. ARMSTRONG: We were located at 20th and M Street, which is where we stayed until the end of ’98. So for the first twenty five years that’s where I worked. The agency was not completely headquartered in that one building. That later became one of the reasons the argument was made that we should move to the Portals building where the agency is now. The General Counsel’s office – the litigation division we had – I believe there were six attorneys. I became one of six – there might have been seven or eight, but it was a small group of attorneys – there was an administrative law division in the General Counsel’s office which basically did the in-house work, advising the Commissioners, advising the general counsel on matters that were not yet decided by the Commission, which would ultimately be decided by the Commission, and when they were decided by the Commission, responsibility would shift to the litigation division. (Start of 2nd Audio File) MATTHEW SHELDON: And what was your office like there? MR. ARMSTRONG: Sixth floor, the Commissioners were on the 8th floor, General Counsel’s office was on the 6th floor, the library was on the 6th floor, and I had a small office, certainly adequate, but I wouldn’t say was spacious, but it faced down M street, the corner of 20th and M. -77- MATTHEW SHELDON: And what was the overall structure of the FCC at the time? I assume there were the Commissioners at the top and various bureaucracy underneath, but how did it divide out? MR. ARMSTRONG: At that time, there were 7 Commissioners. Their offices were on the 8th floor. There were several operating bureaus. The bureaus have undergone several name changes in the time that I’ve been there, but I believe when I was there, there was what was called the Broadcast Bureau. There was the Common Carrier Bureau. There was a relatively new Cable Bureau, which was in a different building. The Broadcast Bureau was on the 3rd floor, and the Common Carrier Bureau was on the 5th floor. The 7th floor was the Field Operations Bureau, and that’s the Bureau that I was supposed to work with on the CB cases, and they were on the 7th floor. MATTHEW SHELDON: And was there any interaction between the Commissioners themselves and the staff of the FCC, or were they of separated? MR. ARMSTRONG: It would probably…you wouldn’t deal with the Commissioner, unless you went through the General Counsel in the case of a staff person located in the GC’s office. It varied when I was there, depending on how the General Counsel wished to conduct the office. There would be some GC’s, particularly a GC who may have had – we had at least one who had been a legal assistant to a Commissioner before she became the General Counsel, and this Commissioner later became the Chairman. She had a very good relationship with the Chairman. She took her staff people to meetings in the Chairman’s Office, even including people below the level of a division chief. We would go with her when a litigation matter was being discussed with the Chairman. There were other General Counsels who also from time-totime would take staff members in OGC to meet with the Chairman. I might add that when I first -78- went to the FCC, there was no Sunshine Act, and the Commissioners could meet privately, in addition to having their regularly scheduled meeting in the commission meeting room, which was closed to the public. They would also have meetings frequently of a much more informal nature in the Chairman’s Office. It wouldn’t be an official meeting. It would just be a discussion of agency business in the Chairman’s Office, and in some of those meetings where OGC staff were in the chairman’s Office, other Commissioners and their advisers would also be there. Formal meetings occurred about once a week, I think, in my early years at the Commission. MATTHEW SHELDON: And would policy objectives of the Commission be developed by the Commissioners and then filter their way back down to the enforcement division through the Office of Legal Counsel? MR. ARMSTRONG: There was always some tension in my time at the Commission between how much the Chairman could operate on his own. I think I can say, at this point, “his,” because we didn’t have any women-Chairman when I was there. We had some women Commissioners. Whether the Chairman had as much power as the Chairman always liked to claim they had…or whether we were truly a collegial body in which a member of the Commission had more say. For the most part, I think you would say the Chairman runs the…he’s the Chief Executive of the agency. He runs the agency. His Bureau Chiefs must be approved by the Commission, but they answer primarily to him. He would develop the agenda in coordination with the Bureau Chiefs who were answerable to him, and then he would share his agenda with the other Commissioners. But frequently, some Chairmen would do a much better job of smoothing the way for important policy by informally discussing the matter with the fellow Commissioners before the staff had really finished and recommended the Order for the -79- Commission. And in those days, it was much easier to do that, because, as I said, we didn’t have a Sunshine Act. The Chairman could call the other six Commissioners into his office and say, “I just had a meeting with the Chief of the Broadcast Bureau and I’ve instructed him to prepare the following Order for your consideration.” MATTHEW SHELDON: And were the Commissioners still on staggered terms then? MR. ARMSTRONG: Yes, they were. MATTHEW SHELDON: What was the period of time? MR. ARMSTRONG: I believe they were appointed for at least five, maybe seven, years. Maybe it was one came up every year, so a full term would be a seven-year term. Most of them didn’t always serve that long, but that’s what it’d be. MATTHEW SHELDON: Can you give me an example of a typical enforcement action or what you remember doing first when you were first there? MR. ARMSTRONG: There was an attorney in the Field Operations Bureau. I believe that was the title they had at the time, and she was an attorney. The engineers who were in that Bureau were in field offices throughout the country and would report to her – her name was Sylvia Sternstein – that we got this particularly bad actor who’s doing CB. She would call me up, and we would meet to discuss the report. I believe in the great majority of the cases, we concluded that the appropriate thing would be an administrative proceeding at the agency level that wouldn’t reach a need to discuss the matter with the U.S. Attorney’s Office. In a more egregious case, we would call the U.S. Attorney’s Office in the district where the conduct was occurring and say, “Would you work with our engineers to get a civil injunction?” And as I said a few minutes ago, if it were a really extreme case, we would ask the U.S. Attorney to pursue criminal prosecution. -80- MATTHEW SHELDON: When I hear CB Radio, I think truckers, but are we also talking about kind of hybrid radio stations? MR. ARMSTRONG: My recollection is it was heavily concentrated in truckers, but not exclusively. People would have CBs in their homes. The amateur service was always offended because there was a tendency among lay people, I think sometimes, to assume that the CB and the amateur were the same thing, and the amateurs regarded themselves as having a much higher quality operation. I guess you could say these would be – they didn’t have the standards that the amateur radio service had, but they were using their radios to talk to a lot of people. It was not broadcasting. Pirate radio, which later became a major enforcement problem, did involve broadcasting. MATTHEW SHELDON: And what about the other component of your job? What was your first appellate case? MR. ARMSTRONG: Well, that was a very, very interesting one, given what happened in that case. The first appellate case I got from Joe Marino involved an application for a small radio station in Pennsylvania. And I believe the application was denied because, after a hearing before an administrative law judge, there was an indication that the applicant’s principals had not been forthcoming about the availability of the station’s proposed transmitter site. After an evidentiary hearing before a Hearing Examiner, now called an Administrative Law Judge, an aggrieved party would then file exceptions to the Examiner’s decision with the Review Board, which was an intermediate body of three people. When this Pennsylvania proceeding got to the Review Board, there was a very strong dissent from one of the three members of the Review Board. When Joe Marino gave me the case, and I was writing the brief – the Review Board made its decision, there was the dissent. The Commission – an application for review was filed -81- with the Commission. I believe in my case, the Commission denied the application for review. At that point, the aggrieved party has a final Commission Order that can be appealed. The Review Board’s decision is regarded as the decision of the Commission. The aggrieved party files an appeal with the D.C. Circuit, since it was a radio licensing decision – exclusive jurisdiction was in the D.C. Circuit. You couldn’t take those cases anywhere else. If it’s not in the category of radio licensing decisions that are enumerated in Section 402B of the Communications Act, the Hobbs Act governs, and under the Hobbs Act, a Final Commission Order could be taken to the D.C. Circuit, or it could be taken to the circuit in which the Petitioner resides. MATTHEW SHELDON: And in this case, and other cases regarding the broadcast requirements, is it a Petition for Appeal to the D.C. Circuit, or is it automatic appeal? MR. ARMSTRONG: If it’s in the Hobbs Act, which can include broadcasting requirements, for example, those adopted in a rulemaking, the formal document that is filed, is a Petition for Review. If it is a 402B radio licensing case, the correct document to be filed is a Notice of Appeal, and it is filed within 30 days of the public notice of the Final Commission Order in the D.C. Circuit. One more point—in the Hobbs Act cases, the U.S. is also named as a statutory respondent. Those cases are Matt Sheldon v. FCC and the United States of America, Petitioner v. Respondents. If it’s a 402B case, it’s Matt Sheldon v. Federal Communications Commission, Appellant v. Appellee. MATTHEW SHELDON: And what was the name of this case, do you remember? MR. ARMSTRONG: Lebanon Valley was the station, or the applicant who was the appellant. And the case is interesting, as I indicated to you earlier, because when I was writing the brief – when I had conversations with Joe Marino, the Division Chief – frankly, I was -82- troubled by the dissent on the Review Board. I didn’t really think the majority opinion had dealt effectively with the points that were raised in the dissent. The Appellant’s lawyer, however, really didn’t make the dissent the focus of his brief, and he didn’t make it the focus of his argument. And he didn’t seem to be scoring any points. The Court did not—with the argument when he was up there—itself get into the Dissent. It was really obvious – Judge Tamm was the judge who was presiding – it was really obvious when the Appellant finished his argument that Judge Tamm wasn’t particularly interested in hearing from me. It was my first argument as a Commission attorney, and so I got the cue that he didn’t really want me to say very much. But I took 30 seconds. I got up, took 30 seconds and said, “If there are no further questions, we’ll rest on our brief.” And there were no further questions. When I got back to the office, my mentor said, “You really probably shouldn’t have gotten up at all. You talked 30 seconds too long. It’s pretty obvious the Court is comfortable in not hearing from you.” When the decision came down, we lost, and the opinion that was written for the court practically tracked the Dissent on the Review Board at the Commission. So, you know, you don’t know what happened; but my guess is that probably after the argument, because I think they would have questions about the Dissent if they really had been focusing on it at the time of the argument. But you know, my supposition is that a clerk, after the argument, wrote an opinion that focused on the dissent, and the Court found it persuasive, so we lost. MATTHEW SHELDON: And what do you recall about your first time appearing before the Court? MR. ARMSTRONG: Well, we didn’t have in those days—the practice changed in my years at the Commission—but in those days, we didn’t have a formal moot court. We usually— in those days there would be sometimes a fair amount of time between the completion of the -83- briefing process and the date for the oral argument. The D.C. Circuit I think later tried very much to track the briefing dates to the argument dates, so there wouldn’t be this huge interval. But you could, you may have gone on to a great number of other cases after you finished the brief in Lebanon Valley, before the argument in Lebanon Valley, but before the argument, the reply brief would come in and so you’d get the briefs. And you would have at least a serious informal session with the Division Chief and with some of your colleagues, discussing the case and trying to anticipate the argument. I don’t remember that everybody in the office was as concerned as I was with the dissent when we prepared for the argument. I didn’t have stage fright because I had argued in the Second Circuit several years before, so I didn’t really have stage fright, and in this case I got through my 30 seconds unscathed at the argument. MATTHEW SHELDON: What was the FCC’s view of the D.C. Circuit at the time, and their relationship with the D.C. Circuit? MR. ARMSTRONG: Well, I landed at the Commission at a very important moment in that relationship. I was thrust right into it from the moment I became the chief of the Litigation Division. But back up for just a minute. I spent about a year as a staff attorney in that Division working on matters like Lebanon Valley. After a year I went for one year over to the Administrative Law Division as the #2 person in that Division for a year. In ’75, I came back to the Litigation Division. Joe Marino was ready to take a different position, and there was a vacancy and by this time, Commissioner Wiley had become Chairman Wiley, so he offered me the position to be the Chief of the Litigation Division. When I say I got thrust into the middle of this tension between the Commission and the D.C. Circuit, I got thrust into it really not when I first went to the Commission in ’73. I got thrust into it when I became Division Chief in ’75. There were two very important—well there were at least two, I should say—policy proceedings -84- going on at that time. One was the issue concerning ownership of broadcast facilities, which later led to the Supreme Court decision in FCC v. NCCB. Another one concerned what the Commission should do when a public-interest group would complain about alleged employment discrimination by radio and television stations. And another one, I’d said at least two – I guess there were really five – three at least, because another one concerned what to do when an outfit like Home Box Office would show movies and sports events that broadcasters wanted to show, and the broadcasters’ argument was “we reach everybody.” They raised the specter that in order to watch baseball games and NFL games someday, viewers might have to subscribe to pay-cable in order to do that. So the broadcasters were asking the Commission to try and restrict the programming that would be siphoned off to pay cable. One more source of tension between the Commission and the D.C. Circuit – radio entertainment format cases. Judge McGowan, in particular, who was a Judge on the Court—a respected Judge on the Court – came from Chicago. There was a proceeding in which the Chicago radio station that broadcast, I believe classical music, was proposing to—the licensee was proposing to sell the station to a new owner, and the new owner was going to change the entertainment format of the station. The new owner was not going to continue to broadcast classical music as its entertainment programming. Judge McGowan and his colleagues on the D.C. Circuit believed that under the Public Interest Standard of the Communications Act, the Commission had the authority to require that the—under certain circumstances—to require that the former programming continue, and it was an abuse of that authority if the Commission deferred to the marketplace, and said, “We’re not going to get involved in it.” There were a number of these entertainment format cases in which the Commission was losing at the D.C. Circuit with some rather strong language from the Court. -85- MATTHEW SHELDON: Were there some Judges on the Circuit that the FCC viewed as favorable generally to their position and other Judges less favorable? MR. ARMSTRONG: Chief Judge Bazelon was the Chief Judge at the time. Judge Wright was a very active and prominent member of the panel who generally voted with Judge Bazelon. There were nine judges on the Court in those days. There were five who were perceived generally and certainly probably at the agency as being in the activist wing of the Court. The other four, who I think happened to have been, with the exception of Judge Tamm, Nixon appointees. And they were perceived as more deferential to the agency and less inclined towards an activist regulatory agenda. That was the perception that existed. Judge Leventhal was for some purposes regarded as one of the five, but he was probably regarded as the one person within the ranks of the five that might be persuaded to support the Commission, as indeed he did, in the Pacifica dispute on broadcast indecency. MATTHEW SHELDON: And going back quickly, you said the Lebanon Valley case—your first time before the court—how did the oral argument go? MR. ARMSTRONG: He had 10 or 15 minutes if I remember correctly. Speaking now about arguments in general, some judges were active at the argument, others less so, and some, just not at all. My recollection of the Lebanon Valley argument is that this was one of those times where the lawyer for the other side was just not making any headway, and the panel, without being particularly interested in what he was saying, nevertheless allowed him to take his 10 or 15 minutes. In my later experience, that was not usually the case. If you had one of the judges who was an active questioner, and it was a case where there was a real issue and the lawyers were engaging on what was the real issue in the case, you could certainly have a real push-back experience. -86- MATTHEW SHELDON: Who had reputations for being the active questioners of the day? MR. ARMSTRONG: I think that’s probably correct. Now Judge Wilkey was one of Nixon’s appointees, and his viewpoint, I think, was certainly somewhat different from the five Democratic, so-called liberal judges, but he was a very active questioner. Judge Wright, however, although regarded as an activist judge, did not always participate actively during oral arguments. Did not, in the Home Box Office case, which was my first major defeat in the D.C. Circuit. A really, really bad defeat in which Judge Wright wrote the opinion. I don’t believe, however, he asked a single question of me at the argument. I also don’t remember that Chief Judge Bazelon was generally a vigorous participant at oral arguments. You know, it’s hard to find a real set rule. MATTHEW SHELDON: First, I guess, did the FCC appeal Lebanon Valley to the Supreme Court? MR. ARMSTRONG: We did not. MATTHEW SHELDON: And was it largely a decision that was focused on this one issue specific to this one radio station? MR. ARMSTRONG: My recollection is that after the decision was made, Lebanon Valley was not a case where we would want to use one of our chips with the Solicitor General’s Office to try to get the Supreme Court to take the case. Nor was it a case where we considered asking the D.C. Circuit to hear the case en banc. That in other cases was a more viable option in my early years than I believe it has been more recently. My recollection is that the Commission probably just ended up granting the application which had been denied. -87- MATTHEW SHELDON: Did this all occur before 1974 when you went over to the ALJ division? MR. ARMSTRONG: I believe that decision – I went to the ALJ division in the autumn of ’74, and I believe we’d already gotten the decision earlier in ‘74. MATTHEW SHELDON: Any other cases of note that you can recall from this time? MR. ARMSTRONG: There was another case called Garrett. It’s a published decision, versus FCC, and that was a case in which – it dealt with minority ownership of radio stations, and that had been another area in which the D.C. Circuit had been prodding the Commission to get more involved, to try to get more minority owners in broadcasting. That policy had begun to develop before I got to the Commission. Initially, the Commission insisted on two requirements in order for an applicant to get special credit for minority status. The applicant first had to be qualified to receive a license. Assuming that requirement was met, but the applicant was in a contest with other qualified applicants, the applicant had to participate in the day-to-day management of the station. The Garrett case, as I now recall the facts, involved an application in which the minority applicant was the only applicant, but a waiver of a Commission engineering rule was necessary; absent the waiver, the application did not satisfy the qualifications’ standard for the grant of a broadcast license. The basic point was that someone was seeking credit for minority status who was not entitled to it under the contours of the policy as it then existed, and that was another defeat for me. The D.C. Circuit said that the Commission’s grounds for not considering Garrett’s minority ownership in deciding whether a waiver of the engineering rule was in the public interest were irrational, so we had to take another look at that. MATTHEW SHELDON: So it sounds like the D.C. Circuit didn’t always give a great deal of deference to the FCC at the time. -88- MR. ARMSTRONG: Certainly not in my own experience, that’s correct. MATTHEW SHELDON: And what prompted your move over to the ALJ Division? MR. ARMSTRONG: There was an attorney in the litigation division who had more seniority than I had, and I believe Joe Marino wanted to take this other attorney and make him his deputy. There was no reason for Joe to think I thought I should fill this position. I considered myself very, very fortunate a year earlier to have been given a very nice position as an attorney doing interesting work, and I would not have expected that a year after I got there that if there were a promotion available, I would get it. But Joe may have had a different perception because of the circumstances under which I was hired at the Commission. Normally people didn’t come off the street. Their first job at the agency would not be in the Appellate Division of the General Counsel’s Office writing briefs in the D.C. Circuit. Nevertheless, I had been hired with the active support of the General Counsel a year earlier and assigned immediately to the Litigation Division. I always got the sense that, you know, Joe felt some concern about how he was going to handle me, and I didn’t come into his division quite the same way everybody else did. So, it so happened in the Administrative Law Division at that time that the chief of that division was in poor health and they wanted to put a person in there who would, on a day-to-day basis, actively run that division. And I suspect, without knowing completely all of the inside details (if I did know I have forgotten) that probably by this time, I think Jack Pettit who had been the GC who hired me – I believe he left in ’74, and we had a new General Counsel by that time, and I believe Joe Marino and the new General Counsel probably said, “Why don’t we do this, we send Armstrong over to Ad Law as the #2 person.” MATTHEW SHELDON: Is that when you were in charge of the trial phase of the FCC matters? -89- MR. ARMSTRONG: The Administrative Law Division worked on matters which were still percolating through the agency. It was a matter that had not yet become the subject of an Order that could be taken to court. The one area I remember that we were working on, particularly when I went over there, (1) concerned whether the commission should regulate the rates that utility pole owners charged cable television systems for attaching their wires to utility poles, (2) at the time, there was no specific statutory provision on this matter. There’s a statute today giving the Commission specific jurisdiction to regulate so called “pole attachment practices.” There was concern that the rates were too high from the cable industry’s perspective. There was an effort made to get the Commission to assert jurisdiction, and that was a proceeding that was – the Cable Bureau was actively involved in that proceeding. The Chairman undoubtedly told the General Counsel’s Office that we know this is a proceeding that will probably get challenged in Court. If we do anything, we want you to be heavily involved in it. At the time I got there, the Administrative Law Division did not routinely review every single order that was being presented to the Commission for Commission approval – the so-called Agenda Review Process. It was a much more selective review process. It was only on really big ticket items, which were thought to be almost certainly heading for a court challenge. These were not sent to the Litigation Division. It was considered busy enough handling matters that had already gotten out of the Commission. My work with the Field Operations Bureau on CB radio complaints also continued to occupy my attention after I moved to the Administrative Law Division. And it was not long after I got to the Administrative Law Division that the Litigation Division came back and said that there are some proceedings that we would like you to continue to handle in the Litigation Division. One of those proceedings was in the Second Circuit, a big rulemaking proceeding in the very early part of ‘75, about six months after I moved to the -90- Administrative Law Division, concerning the “Prime Time Access Rule”, which was being litigated in the Second Circuit, and I handled that. MATTHEW SHELDON: (0:38:07) Give me a little background on that case. It sounds interesting. What was it about? MR. ARMSTRONG: Before I got to the Commission, the agency had adopted an order which had been successfully litigated, defended in the Second Circuit, and I believe it was in the Mt. Mansfield case which was decided probably around 1970. And basically, what the idea behind the Prime Time Access Rule was that you would try to clear valuable time, prime time, for some programming other than programming that came through the network funnel. The argument was, for at least a portion of the prime-time viewing, let’s give somebody a chance to get through to the public other than – at that time, there were really just the three networks: NBC, CBS, and ABC. So, as a practical matter, the rule removed the networks from the 7:30-8:00 hour, and from 7:30-8:00, the so called “independent programming” would have access, and a lot of that programming turned out to be relatively inexpensive programming, such as game shows. There began to be, about the time I came to the Commission, a pushback, and the upshot of that pushback was a proceeding in which the Commission reopened the door ever so slightly to allow the networks to come back into the 7:30-8:00 hour. My recollection won’t help me with the exact specifics, but I think they basically said if you do a documentary, or if you do a children’s program, or if you do a news program, the networks can use the 7:30-8:00 time slot. That was vigorously contested by the program producers which had benefitted from not having to compete with the networks for that time. The Second Circuit is the Circuit which had upheld the original Prime Time Access Rule, undoubtedly thinking that the Second Circuit would be sympathetic to that Rule, the Petitioners took their challenge back to the Second Circuit. There had been an -91- initial skirmish in 1974 and the Second Circuit remanded, the Commission’s first attempt to relax the rule. In that case, I had worked on the brief, but I didn’t argue the case. The Commission then went back to the drawing board, during the time when I was in the Administrative Law Division, and finished its work on the remand and the remanded proceeding went back to the Second Circuit in the early part of ’75. That’s when they came down the hall to me in the Ad Law Division and said that this time I was being assigned to brief and argue the case. The upshot of it was that we had an argument on the stay around the middle of February; the stay was denied in open court. The other side was given ten days to file its brief, and we were given ten days to file our brief. We had an oral argument up there less than a month after the argument on the stay, and six weeks later we had a decision. And while all of this was going on, I was still in the Administrative Law Division. The decision that came down was one of those decisions where if you looked at it from the outside, you would say, “Mmmm, this was kind of a split verdict,” and there was some aspects of the opinion that went to the Commission’s way and other aspects were remanded. Not every decision where you have a split verdict can be considered a win, but in that decision, the things we really cared about the most were upheld and that case was thus, generally considered a victory. MATTHEW SHELDON: And were there any ultimate reverberating effects from that? MR. ARMSTRONG: The Prime Time Access Rule, when it was initially introduced in ’70, was a part of a three-prong attempt to limit network dominance. There was a Prime Time Access Rule, and there was the financial interest rule and the syndication rule. All of this is discussed in the Mt. Mansfield opinion. The Motion Picture Association of America was very successful in lobbying in particular on behalf of the financial interest and syndication rules as a -92- means of benefiting Hollywood Studios. The repeal of the financial interest and syndication rules came about as a result of high-profile litigation in the early ‘90s in the Seventh Circuit where Judge Posner authored the Court’s opinion agreeing with the Network’s arguments in favor of repealing those rules. I’m embarrassed to say I don’t know for sure, but I think the Prime Time Access Rule has also quietly gone away. MATTHEW SHELDON: Was that the most important case you remember during your time in ALJ Division? MR. ARMSTRONG: I suspect that case was definitely my calling card to become the Chief of the Litigation Division. We got the opinion in April ’75 from the Second Circuit, and although there was some further work that had to be done, it was not by any means a complete victory, but the client was generally very happy with the way it came out, and about six weeks after that – MATTHEW SHELDON: And by client, do you mean the Commission? MR. ARMSTRONG: For this purpose, I am equating the Chairman with the Commission. About six weeks after that decision came out, in probably the late spring of ‘75, Joe Marino, who had been in the Litigation Division as the Chief of the Division…at that point, he’d probably been there 2 or 3 years. I think he’d been there about a year before I joined the agency, and we were now 2 years into my stay at the Commission. He had an opportunity to go down to the Common Carrier Bureau and become the Deputy Chief. I think he was burned out with the brief writing and oral arguments and just in general the work of the Litigation Division, so he’d indicated to the Chairman and the General Counsel that he would like to take this position in the Common Carrier Bureau. By now, Commissioner Wiley had become Chairman Wiley and called me up and told me what was going on and said, “I would like to offer you the -93- position to go back to the Litigation Division.” By this time, I believe the person that I mentioned earlier who was senior to me had taken a position as the Legal Assistant to one of the Commissioners and was no longer in the Litigation Division. The Chairman didn’t tell me specifically, but I have always thought that the successful outcome of the PTAR case in the Second Circuit probably is the reason that he gave me the offer to become the Chief of the Litigation Division. We had an interesting discussion. He said the one thing that made him a little reluctant to offer me the position was that I’m not sure you’re going to be with us that long and I would hate to offer it to you and then have you leave shortly thereafter. We’re having this conversation and I think it’s May of ’75. I had to assume that Chairman Wiley was not going to stay at the Commission forever, so a convenient point for his anticipated departure seemed to be the end of the presidential term, which would’ve been January of ‘77. So I said, “Well, I’ll make you a promise. That is, I don’t plan to leave. I don’t know that I will leave, but you’re nice enough to say that I may have the chance to leave; but if you’re right and those opportunities develop, I will not leave until, at the earliest, January of 77.” So, at that point, he was satisfied and the deal was closed. In light of subsequent history, that was one promise that was kept. MATTHEW SHELDON: At this point you’ve been an Assistant U.S. Attorney, you’ve worked for the FBI, now you’re over at the FCC. Did you feel like you had found your one true calling at the FCC? MR. ARMSTRONG: When I became the Chief, the Litigation Division was primarily engaged in appellate practice. In subsequent years, trial court cases became more numerous and more significant. But it seemed in ‘75 as though my niche was going to be appellate litigation, and the real question was whether I did appellate litigation as a member of the FCC, or whether I -94- did it in private practice. But yes, by June of ’75, I had come to think of myself as an appellate lawyer. MATTHEW SHELDON: One thing that was interesting when you were talking about the major issues that were facing the Commission when you came on, and you talked about four of them, and I didn’t hear you mention indecency, and I wonder if you could just give me the Commission’s position at that time on indecency, because obviously that has generated a lot of news. MR. ARMSTRONG: It was a very big focus. I remember when we went to the Second Circuit, as I said a minute ago, one of the exemptions under the Prime Time Access Rule was an exemption for children’s programming. When Joe Marino, who was then still the Chief, was discussing with me the brief that we were going to have to file in the Second Circuit, he said, “Now this is a part of a larger picture. The Chairman is cracking down on indecency. The Chairman is also interested in affirmatively getting more programming that is suitable for family viewing. This will become important because it ultimately was a subject of high-profile litigation in the Ninth Circuit. The Chairman’s interested in having a family viewing hour, like 7-8 at night that will be programming where parents can sit down with their children and watch television without fear of what may show up on the screen. We’re going to crack down in the radio area, in particular, on indecent language. We’re going to send you to the Second Circuit to try to get an exemption for children’s programming that would be available during access times, so this is all part of a larger picture.” My recollection is that, shortly thereafter, when the indecency language, the Carlin monologue decision was challenged, it was generally understood that, although he was going to leave the General Counsel’s Office to go to the Common Carrier Bureau, Joe Marino had a particular interest in the George Carlin Broadcast Indecency case, and -95- so, he was going to continue to have a key role in working in that case and I, as the Chief of the Division, would not have to consider that that was on my plate. I was very happy with that arrangement. MATTHEW SHELDON: And did you feel like the employees and the attorneys at the FCC morally believed in the decency provision, or were they following orders, more or less? MR. ARMSTRONG: I think, initially, nobody saw the potential line-drawing problems that might come about as a result of having the activist indecency regulatory machine. So, I don’t really think there was really any huge pushback at the staff level. Obviously, if there were private misgivings, everybody that I ever worked with at the Commission at my level always put their professionalism first, and they would always – they might in a private session after work over a glass of wine or a beer share their personal feelings, but on the job, it never stopped them from coming up with the best defense of the agency’s decisions. There were probably some of my colleagues with small children of their own, quite possibly those in particular, who were not only professionally committed to the result, but they were, in their private capacities, committed to the result and they worked heavily with Joe Marino, first in the D.C. Circuit and then in the Supreme Court. MATTHEW SHELDON: Was there a noticeable division among the Commissioners on the issue? MR. ARMSTRONG: My recollection is that indecency – you know, the old saying the Supreme Court follows the election returns. My recollection is that for whatever reason, the members of the Commission were generally supportive. One of the members of the Commission at the time was Glen Robinson who for many years after he left the Commission has been a distinguished professor at the University of Virginia Law School. In the last couple of years, -96- when the indecency regime has again been challenged in the Supreme Court and in several circuits, a number of former Commissioners and former important staff personnel at the Commission have joined in an amicus brief supporting the challenge. I’m told that Glen Robinson wrote that brief. His name was on it. He was the lead draftsman, and he certainly says in that brief that he was on the Commission in the mid-‘70s when the Commission adopted its Order in the George Carlin Monologue case that became the Pacifica decision, and I think he also wrote a concurring opinion at that time. The amicus brief refers to his support at the time for the order regulating indecency in the Carlin Monologue case. The brief then expresses concern over what has become of the indecency regime in the subsequent years. But I remember at the time that, when the Chairman, and I think the Chairman was very good – again, preSunshine days – he was very good in trying to lay the groundwork for his agenda with the other members of the Commission, and there was give and take in that process, and the word at my staff level was that Commissioner Robinson’s support was extremely important to the Chairman in getting the Carlin Order through the Commission, and there may have been some – the order was written, the opinion was written with Robinson’s support in mind, and I think that’s probably something that was helpful when the case reached Judge Leventhal and, yes, I specifically mention Judge Leventhal because I subsequently had a brief but memorable conversation with him about Pacifica. MATTHEW SHELDON: This is the Pacifica – MR. ARMSTRONG: The Pacifica. Again, I’m talking about a case that I didn’t handle personally, but I think it’s a very important case during the time I was at the Division. It’s probably worth spending a minute on. -97- MATTHEW SHELDON: And is this the challenge to George Carlin’s Seven Dirty Words? MR. ARMSTRONG: Yes. The Seven Dirty Words Order that broadcasted at two o’clock in the afternoon, which a gentleman, I think in New York State and his son heard, that was the factual foundation in which the order issued. The decision on indecency came out. We had a bloody March, as we call it – March of ’77, and we’ll talk in a minute probably about newspaper cross-ownership and the anti-siphoning case, Home Box Office, for both of which came down in March of ‘77. So did indecency. Judge Tamm and Judge Bazelon were the majority which struck down the Commission’s order. Judge Leventhal had a very powerful dissent in which he tried to see the case from the perspective of the Commission and those who wanted it to regulate in this area. The dissent declined to read the Commission’s order as an open-ended invitation for censorship, but instead made the case for more limited regulation as persuasively, in the opinion of many, myself included, as possible. The dissent was obviously something to which the Supreme Court would pay careful attention. So, that was March of ’77 and a year later, it was argued in the Supreme Court. The Justice Department had left the ship and gone over to the other side so the Commission was on its own when the case reached the Supreme Court. My predecessor, Joe Marino, with help from some of the very able attorneys in the litigation division, wrote the brief. He argued the case in the spring of ’78. It was the last case on the term to be decided, just before the Fourth of July. The other side was at the Supreme Court, with the television cameras waiting outside, understandably expecting to win. The argument had been pretty tough on the Commission. People on our side, on the other hand, went to the Court that morning expecting to lose, but everybody knew that Pacifica was the only case left for decision on the last day of the term. Some months after the Supreme Court’s 5-4 -98- decision in favor of the Commission, Judge Leventhal had occasion to call me. This was one of the very few telephone calls I got at work from a judge. He was writing a Law Review article, and there had been an obscure FCC case that never resulted in a published opinion, but it was a case in which he’d been the presiding judge, and had come up with a creative way to settle the case. He wanted to cite that in this Law Review article he was writing, and he’d forgotten the name of the case. So, he was asking my help in giving him the case name. After that part of the conversation was completed, and we were getting ready to hang up, he was very pleasant and he said, “Oh, by the way, were you surprised when the Supreme Court affirmed me in Pacifica?” Well, you know everybody suspects that a well-respected judge with an influential dissent can be very, very helpful at the Supreme Court in a close case. It was widely believed at the time of the Supreme Court’s decision that the Leventhal dissent really saved the day for the Commission. It was very interesting to me to hear firsthand that Judge Leventhal also saw Pacifica as a personal victory. MATTHEW SHELDON: Well, with that, let’s leave today and pick up the next session with the beginning of your time as the Chief of Litigation with the FCC and focus on that period from 1975 forward. MATTHEW SHELDON: Great, well, I look forward to our next session. MR. ARMSTRONG: Thank you. (End of recording) -99- ORAL HISTORY OF DANIEL “MACK” ARMSTRONG Third Interview – May 17, 2012 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Daniel “Mack” Armstrong and the interviewer is Matthew S. Sheldon. The interview is taking place at the Law Offices of Goodwin Procter on May 17, 2012. This is the third interview with Mr. Armstrong. MR. SHELDON: Thank you for doing this. When we last left off, we had just reached the year 1975, and we left 1975 onward for our discussion today. I’m hoping you can give me a background of where you were in 1975 and what you were doing. MR. ARMSTRONG: I was in the Administrative Law Division of the General Counsel’s Office at the FCC. I had gone there about Labor Day of ’74 as the Deputy Chief of the division. I continued during the ’74 and early part of ’75 to do an occasional litigation case. The most notable of which was the case dealing with the so-called Prime Time Access Rule in the 2nd Circuit. That case was argued and decided in April – argued in March, decided in April of ’75. In early June of ’75, the then-chief of the Litigation Division took a position in the Common Carrier Bureau, and then Chairman Wiley of the Commission offered me the position as the Chief of the Litigation Division, which I accepted. I assumed its duties in the summer of ’75. MR. SHELDON: What were the job responsibilities of the Chief of the Litigation Division? MR. ARMSTRONG: The Chief of the Division was at that point, it’s larger now, but at that point I think we had about six or seven attorneys. And the Chief of the Division was responsible for assigning the cases when they came in; he was responsible for reviewing the briefs; and then he was responsible for assigning the oral argument. Sometimes, if it was a case of particular sensitivity or particular difficulty, the guidelines were somewhat unclear. It was a -100- matter of judgment on some occasions, but the Chief would tell the attorney who wrote the brief that this is a case where the Chief or the Deputy Chief would have to take the oral argument. MR. SHELDON: And who did you report to? MR. ARMSTRONG: There were – I mentioned the Administrative Law Division, the Litigation Division, and there were – in the front office, there was the General Counsel. There was usually at least one deputy, sometimes two deputies. It varied from time to time, the extent of which – when I first assumed the job, the front office was not interested in routinely reviewing the work of the Division. Occasionally that was because of a recusal. I recall that in 1977 with the incoming Carter administration, Chairman Charles Ferris was appointed to the Commission. His General Counsel was recused from one of the more important matters early in my tenure which was the newspaper/broadcast cross-ownership proceeding, which was in the D.C. Circuit, and then it went to the Supreme Court. Ordinarily, of course, even if the General Counsel would not routinely review our briefs before they were filed in court, certainly in a case of that importance, dealing with the Supreme Court, the Litigation Division would not file a brief without clearing the filing with the General Counsel. But in that particular case, because of the recusal of the General Counsel, there was no one to report to in the General Counsel’s Office, so we didn’t. But ordinarily the Division reported directly to the General Counsel, or the Chief Deputy in the GC’s office, who oversaw the Litigation Division. MR. SHELDON: And did the FCC handle all its own appellate work, or were other parts of the administration involved? MR. ARMSTRONG: The appellate work of the Commission was generally governed by Section 402 of the Communications Act. Subsection A is the Hobbs Act, which applies not only to the FCC, but also to some other agencies. In those cases, which are – rulemaking would be a -101- classic example of a 402 – a petition for review case. The Justice Department represented the United States as a statutory respondent in cases of that type. The Commission was also named as a respondent. It was direct review in the Court of Appeals. We would ordinarily be responsible for writing the brief. We would coordinate with the Antitrust Division of the Justice Department, and they would certainly, before they signed on to the brief, they would review what we did. But the laboring oar for drafting the brief, and then having the attorney do the argument, rested with the respondent FCC, and not with the Antitrust Division of the Justice Department. The other direct review cases, which are Section 402(b) cases, in shorthand they are radio licensing cases, and there are a number of categories listed as being exclusively under Section B as opposed to the Hobbs Act. In the B cases, only the Commission was a named appellee. We wouldn’t deal with the Justice Department at all until the case was ready for possible review at the Supreme Court. Cases under Section 402(b), unlike the Hobbs Act cases which could go to either the D.C. Circuit or to a Circuit in which the petition satisfied venue requirements, were within the exclusive jurisdiction of the D.C. Circuit. MR. SHELDON: Was there ever any tension with the Department of Justice and FCC regarding positions to take on strategy? MR. ARMSTRONG: In many instances, once the Commission decided a matter, the Justice Department will defer to the Commission and either sign our brief or simply take no position in the court case. In the very early part of my tenure as the litigation chief, there were two very important rulemaking cases in which the Department and the Commission took different positions. The Department had actively participated before the Commission and after the Commission did not accept the Department’s arguments, the Department persisted in opposing us in Court. They filed a respondent’s brief in support of the petition, so those two -102- cases were the newspaper/broadcast cross-ownership matter, where there was the disagreement with the Department on the issue of how much divestiture to order, and then the other one was the case that became Home Box Office, which dealt with the so-called anti-siphoning rules, in which the Commission sought to restrict the movies and sports events which could be offered on the pay cable medium. MR. SHELDON: Was the tension between the FCC and the Department of Justice palpable in those cases? MR. ARMSTRONG: Frequently in a case where we get a heads up that the Department is having difficulty with defending the Commission’s position in court, that’s certainly a matter you bring to the attention of the General Counsel. Little bit hard to do, as I said a minute ago, in the radio/newspaper case, because the General Counsel was recused. But that case spanned two administrations, and the General Counsel who was there when the case first began, who would in fact argue the case initially in the D.C. Circuit, he was not recused. So, I don’t specifically recall, but I think that probably what happened was we discussed the case with the GC as soon as we got word that the Department felt sufficiently strongly about the matter, that they intended to oppose us in the Court of Appeals. He would consult with the Chairman, sometimes an effort would be made to go to the Assistant Attorney General in charge of antitrust, possibly even go to the Solicitor General, and try to urge the Department to support the Commission, or at least take a neutral position. Don’t remember specifically, but my recollection is that in both the divestiture case and in the anti-siphoning case, it was so obvious and so well known that there was a disagreement between the Department and the Commission. I think it was just assumed as a foregone conclusion that the Department would be filing a brief in support of petitioners in the court. So there wasn’t much going on behind the scenes. That’s a little bit atypical because in -103- the other cases that weren’t of quite such high visibility, there would be discussions, perhaps at the General Counsel level, perhaps even in a rare case at the Chairman level, to try to see if we couldn’t come to a meeting of the minds. MR. SHELDON: Did you ever feel or notice political pressure to take a certain position that was coming from the administration rather than the FCC itself? MR. ARMSTRONG: Well that wouldn’t – I didn’t enter the picture until the Commission had made its decision. Presumably while the decision making process was underway at the Commission, there would be an opportunity for that kind of back and forth to develop. But by the time it got to my desk, and that was sort of water over the dam, and I don’t remember – I mean, everybody understood that the job of the Litigation Division was simply to make the best legal arguments we could make to defend whatever position had been taken. We were not nervous about proceeding to do just that, no interference with us. MR. SHELDON: When you took over as Chief in 1975, give me a sense of what you came into, what kind of work you were looking at, and what were the major controversies that you were dealing with. MR. ARMSTRONG: Well, we touched on two of them. One was the newspaper divestiture issue in the cross-ownership proceeding. I mention specifically the divestiture issue because there was another aspect of that preceding, which 30 years later has become a much more important issue than it was in ’75, and that’s the issue whether the Commission should have any rule even prospectively restricting newspaper/broadcast cross-ownership. In 1975, the newspaper and broadcaster trade associations were challenging the entire rulemaking. The real fight, however, the real area of disagreement with the Department was on the issue of whether or not the order should require the divestiture of newspaper/broadcast combinations that had been -104- in existence in some instances since the beginning of television or the beginning of radio. The other case involving an obvious policy disagreement between the Justice Department and the Commission was the anti-siphoning case, which was the Home Box Office – ultimately became the Home Box Office decision. A third bid ticket case on our plate around this time in which, unlike the other two, the Justice Department and the Commission were on the same side consumed much of the summer of 1976. The case involved a significant controversy in the Fourth Circuit concerning the rules for connecting customer-provided equipment to the telephone network. The Commission in the – back up a minute – in the common carrier area there was an attorney in the Litigation Division, John Ingle, who, when I came to the Commission and when I became the Chief of the Division, specialized in the telephone common carrier area, and he and I had a division of the market when I became the Chief. He concentrated on the common carrier cases, and I concentrated as the Chief on everything else. I mean, technically, we were in a Chief/Deputy Chief vertical relationship; as a practical matter, we were co-equals. Common carrier cases would funnel through John and everything else would funnel through me. Getting back to the Fourth Circuit litigation I mentioned a moment ago, the Commission won a case which, before I became the chief, and which over the strong opposition of the State of North Carolina Utilities Commission, the Commission’s jurisdiction over the attachment of customer equipment to the telephone network was upheld. The jurisdictional argument arose from the fact that the telephone network was used for both interstate and intrastate calls. And if you wanted to attach equipment to that network, you were attaching equipment which was going to be ultimately used in the course of both interstate and intrastate calls. Now, that led to a very strong argument about who had jurisdiction. That case was handled without my involvement -105- and the Fourth Circuit upheld the Commission’s jurisdiction in a decision that was issued shortly after I became Chief. The next case that came up, which was also in the Fourth Circuit, was a case in which the Commission adopted rules, the so-called equipment registration rules, setting forth what conditions had to be met in order to attach equipment to the network. So then there was a subsequent significant case, also in the Fourth Circuit, challenging the Commission’s exercise of its jurisdiction, which had been upheld in the first case. That second case was on a fast track in the Fourth Circuit in the summer of ’76, and the Chief of Common Carrier Bureau in that case specifically asked that I assume responsibility for – even though ordinarily common carrier cases weren’t in my area – he specifically asked that that was one that he wanted me to be actively involved with, and so that one was a major case for me in the summer of ’76. So we had those three. We then had – it is a little fuzzy here, but most of the cases we’re talking about right now occurred in the first four years I was in this job, roughly between ’75 and ’79. There was a big controversy brewing over – we talked about the last meeting, which I did not handle for reasons we discussed there. There was a significant case under the Clayton Act, dealing with, it was a joint venture of IBM and Comsat to provide domestic satellite service in competition, basically with AT&T. This was a potential competition case under the Clayton Act that was in the D.C. Circuit. That was one in which the Department, it ultimately became the United States vs. FCC. That was a case in which the Department again took a different position from the Commission. Another major case involved radio entertainment format changes in which a station, for example, which had been broadcasting classical music would propose to – the owner would sell, and the new owner proposed to have a different entertainment format, and there were arguments made that -106- under the public interest standard of the Communications Act, the Commission had the authority to take that into account, and if necessary, use its power over the license transfer to ensure that a so-called unique entertainment format was allowed to continue. Advocates of FCC intervention argued that it wasn’t in the public interest to allow, for example, the city of Chicago to lose its only classical music station. Judge McGowan, who was from Chicago, was a judge on the D.C. Circuit, who felt very strongly that the Commission under the public interest standard was obligated to act in those areas. The Commission preferred to leave that issue to the marketplace, and there was some very unpleasant litigation in the D.C. Circuit and then ultimately in the Supreme Court on that matter. MR. SHELDON: What was that case called? MR. ARMSTRONG: It ultimately became WNCN Listeners Guild vs. the FCC. That’s what it was in the Court of Appeals and when the Commission was the petitioner in the Supreme Court, it was FCC vs. WNCN Listeners Guild. MR. SHELDON: And did you argue that case in the Supreme Court? MR. ARMSTRONG: I did not. In the entertainment format case, the Deputy General Counsel under Chairman Ferris argued that case, and obviously the Division worked very closely with him. As I said earlier, there was varying interest in my time at the Commission as to how much the front office, to which we reported, would handle litigation. There was more interest in the front office in litigation under Chairman Ferris, than under Chairman Wiley, and David Saylor who was the Litigation Deputy, argued the format case. He argued it both in the Court of Appeals, and although that was a case in which the Department was on our side, this was not a policy disagreement with the Department of Justice, but that was one of those cases where the -107- Solicitor General agreed to allow the Commission to do the argument in the Supreme Court. So David did the argument in both the D.C. Circuit and in the Supreme Court. MR. SHELDON: Tell me about the fairness doctrines and your role in litigating over it. MR. ARMSTRONG: There were some cases applying the fairness doctrine, which were litigated before Chairman Fowler became chairman at the beginning of the Reagan administration. MR. ARMSTRONG: A station had an obligation to discuss controversial issues of public importance, and, and this is where most of the litigation came up under the so-called 2nd branch of the doctrine to offer a reasonable opportunity for the presentation of contrasting viewpoints on controversial issues of public importance. Litigation would develop over what was the – you had to define, what was the controversial issue of public importance. It would develop over the question of whether or not the complainant presented a prima facie case that the doctrine had been violated. The Commission, recognizing the sensitivity in the First Amendment area, thought that it was appropriate to limit the Commission’s intervention to cases in which the complainant made a prima facie case that a station had not met its obligations. We had a case early on in my tenure as the Chief in which the American Security Council I believe, I’ve forgotten exactly what the case – I think it was American Security Council Educational Foundation or something to that effect, in which a group headquartered down in Virginia I believe had a very strong interest in national defense issues, and they came at it from I guess you would call a so-called hawkish, conservative position on aggressive national defense. And they thought that the, I believe it was particularly CBS, their attention was directed to CBS, that CBS’s coverage of national security issues didn’t reasonably present the viewpoint that there -108- needed to be a more aggressive posture in defense. The Commission did not uphold the complaint, finding if I recall correctly that they hadn’t properly defined, as a part of the prima facie burden, they hadn’t properly defined what the issue of controversial importance was. And there was a panel in the D.C. Circuit which initially agreed with the petitioner that the Commission had improperly applied the doctrine. MR. SHELDON: Did you argue that case? MR. ARMSTRONG: I argued that case – I argued it on the en banc, and I believe I probably – I mean I have to check the records on whether I argued it before the panel or not, since we got beat at the panel level, I naturally want to forget about that, but I definitely argued it – I think I argued it at both levels, and… MR. SHELDON: I assume that you petitioned for the en banc because you felt strongly about it. MR. ARMSTRONG: We did. Well, obviously you had a leg up in understanding the issue at the en banc level because of the earlier involvement at a time in which we had – in recent years we haven’t had much en banc experience with the D.C. Circuit – several en banc cases in the D.C. Circuit. The American Security Council fairness doctrine case was one. The joint case, which raised issues of potential competition where Comsat and IBM were proposing a joint entry venture was another; and there were a significant number of cases that came up in which public interest groups would argue that stations were guilty of employment discrimination. They would argue that the Commission had a duty to allow them to – since the only people who had real access to the information about employment were the licensees – the public interest groups argued that they should be allowed, even before they had made a prima facie case to warrant designating the renewal application for hearing, which is a high standard they have to meet under -109- the Communications Act, pre-hearing discovery. They were essentially arguing that in order to give them a fair chance to meet their burden to make a prima facie case of employment discrimination, they had to be allowed to seek discovery of stations considering their employment practices, the so-called pre-designation discovery. The Commission lost some cases at the panel level in the D.C. Circuit on that issue, and that was another instance where we successfully persuaded the Court en banc to hear the case and argued the prehearing discovery EEO issue en banc, and the American Security Council fairness doctrine issue en banc, and they were roughly within a year of each other. MR. SHELDON: When you wrote your en banc petitions, would you specifically target certain judges that you hoped would seize upon something or would you just try and make your best argument? MR. ARMSTRONG: If you had gotten a dissent at the panel level, obviously that was a significant consideration in the first place about whether it warranted going for en banc, and certainly you would try very hard in the en banc petition to appeal to the dissenting judge. One example of a petition for rehearing en banc that was drafted with a specific judge in mind occurred shortly after the Supreme Court had upheld the Commission in the dispute with the Justice Department on the extent to which divestiture was required in the newspaper/broadcast cross-ownership matter. We had a comparative renewal case in the D.C. Circuit involving a television station in Daytona Beach, Florida. The licensing system has now been changed, but at that time, when the television station would come up for renewal, they were subject to competing applications. In this particular instance, the incumbent television licensee in Daytona Beach was challenged. The challenger argued that under the important licensing factors of diversification of ownership and integrating the owners into the day-to-day management of the station, it came out -110- ahead. The incumbent’s argument was, look, in order to provide continuity – it’s one thing to say if we were both new applicants for an initial broadcast license, it’s one thing to decide the case on the basis of who makes the best showing under those factors – but in a case where you have an existing licensee with a record of service, the most important consideration at all times should be the performance by the incumbent and if the incumbent’s record is substantial, that should outweigh the challenger’s advantages under the diversification and integration of ownership with the daily management factors. The Commission, consistent with the position that it had taken in the Supreme Court divestiture issue essentially concluded that an incumbent with a substantial record would prevail in a comparative renewal contest over a challenger with advantages under the diversification and integration factors. The Commission’s argument was, this case in Daytona Beach is not unusual; there are lots of incumbents that have to apply for renewal, and many, many incumbents have absentee owners, many, many incumbents own media properties elsewhere, so if you accept the argument of the challenger that the case should be decided the way it would be decided if these two applicants were competing for initial license, the potential is there for a significant disruption of ownership. The Commission had just been before the Supreme Court resisting divestiture because the Commission wished to preserve continuity of ownership and to create an incentive for licensees to perform substantially during their license terms in order to get their licenses renewed. The issue in the individual comparative licensing cases seemed very much the same issue recently decided by the Supreme Court. So it was of great concern to us that we got a panel opinion from the D.C. Circuit in a licensing case, which as we saw it, raised the specter of significantly destabilizing the industry. So, we went for en banc review. The panel apparently understood how strongly we felt, at one point describing an argument as reflecting an “agitate” concern -111- about the practical consequences of the panel’s opinion. The petition for rehearing was written with Judge Leventhal very strongly in mind. He had not been on the panel in the Daytona Beach case, but in an earlier comparative renewal case, he had authored an opinion that upheld a comparative renewal expectancy for the incumbent licensee in a typical comparative renewal case. As we read his opinion, it was on all fours with the favorable opinion the Supreme Court had just issues upholding the Commission’s position on the divestiture issue. Rehearing was denied, but in denying rehearing, the panel wrote at length that our “agitated” petition for rehearing had not accurately interpreted the intent of the earlier panel decision. At the end of the day, even though we didn’t get rehearing, the revised opinion of the panel gave the Commission the leeway in the remand proceeding to reward a renewal expectancy and renew the incumbent’s license. I have no way of knowing this, but I will always believe that Judge Leventhal played an influential role in the Court’s interval deliberations on the Commission’s rehearing petition and his role had a lot to do with the panel’s decision to write at length to the Commission’s satisfaction. MR. SHELDON: Let’s talk about the kind of behind the curtain actions for how the Commission would prepare for arguments before the D.C. Circuit, and let’s use the American Security Council case as an example. Do you recall what you did to prepare for the en banc argument, once you knew it was coming? MR. ARMSTRONG: Well one of the benefits that I had as Chief of the Division was the opportunity to really get to know some of the lions of the communications bar who represented the private parties who intervened in litigation on the side of the Commission. I recall in the American Security Council case, which I believe focused on CBS, that was a case in which Roger Wollenberg, who’s been in this series of interviews, I think you gave his interview as one -112- of the examples to read, and was a lion of the Communications bar at Wilmer representing CBS, was the counsel for intervener in the American Securities Council fairness doctrine case. Very instrumental in – embarrassed to say I continue to remain fuzzy about who argued for the Commission before the panel, but I do remember that we ended up on the losing side. We had a lot of discussions with Roger about either to seek rehearing and then about how to draft the petition after everyone concluded that we would seek rehearing. Then when rehearing was granted and we were writing the brief, getting ready to argue the case en banc, we again benefitted from his advice. The relationship with the private bar in a situation like this is a very delicate one, and not all of my peers within the government I think shared my approach. There was a concern among some people that it’s really, really dangerous to get too closely aligned with people who have perhaps different interests from the interest that the government should have, even though in that particular case they support the same result. Got to be very careful about dealing with those who have different perspectives. Whether out of necessity or just out of conviction or both, I didn’t share the suspicion about working too closely with the private bar. I was relatively new to the communications business. In some instances, there was no one above me at the Commission to whom I could report and who could compensate for my relative lack of experience. We had people, first it was Ernie Jennes at Covington & Burling in the newspaper cross-ownership case, and it was Roger Wollenberg in a number of cases, including the one we’re talking about now with the fairness doctrine, whose expertise and experience and respect within the communications bar is unquestioned. They had on behalf of their clients a common interest in trying to make sure that the case was handled successfully. I knew I must be sensitive to the fact there could be trouble if there were a conflict, and if against our better judgment we took a position in a court filing that might have served the interests of a private intervener, but -113- didn’t serve the institutional interests of the Commission. We always had to be sensitive to that, but in the case of my relationship with Roger, for example, we developed I felt a very close bond of trust, and he understood the position that I was in, and I think he was always very sensitive to the fact that he couldn’t – there’s a limit to how much he could urge us to say something in a pleading. There were occasions where he would say that he intended to say something in his client’s brief as an intervener but which he knew the Commission’s attorneys could not include in their brief. But he would basically say the Court, in his judgment, reads your pleading much more—it’s much more likely to read your pleading than it is to read our pleading. So it’s really important from my perspective that I spend as much time working with you on your pleading as I spend on our own pleading. Mindful, had to be careful about what you put into your pleading at the behest of the lawyer for a private party. Nevertheless, we got over those problems and I was more than willing to bare my soul to Roger Wollenberg, for example, and his lawyers at Wilmer. And I remember very distinctly we’d have moot courts together. We sometimes had the moot court at their firm. Sometimes they would come to our building. But we would very definitely – now, in later years, I said earlier that I’m not sure all of my colleagues are quite as interested in the sharing relationship—they want to keep the private parties a little more at arm’s length. And in later years when I was at the Commission, there would be much more of an emphasis on doing moot courts within the government, including the Justice Department attorneys in cases where we were together. They would sometimes have a second moot court and they would invite the intervener to come, but it wasn’t quite like it was in my early years there. Basically, the moot courts – we wouldn’t usually have more than one at the Commission in my early years, and in those big high-profile cases our supporting interveners would participate. In addition to the moot courts, I personally and perhaps unconventionally found that it was more helpful to just spend -114- about two or three weeks—first, pretty much on my own writing down everything that troubled me about a case. And in the course of doing that, I would communicate with the staff attorneys at the Commission or I would communicate with my colleagues—when I say staff attorneys, I mean people who were in the operating bureau. The American Security case came out of the broadcast bureau. So I would call up some of the pros at the broadcast bureau if I had some questions about the way the fairness doctrine had been applied. In the course of preparing for the argument, I would bombard them or ask them might be a better word—with questions. I would take these questions to my colleagues in the General Counsel’s office or we would have a phone conversation, not a moot court, but just a phone conversation with members of the outside bar. I personally found these skull sessions were frequently more helpful to my preparation than moot courts. MR. SHELDON: How would you moot an en banc hearing? Would you still just go with three people asking questions or would have a wide panel? MR. ARMSTRONG: We didn’t always in any way put the number of judges up there to match the number you would be arguing before. It’s probably true just because of the higher profile aspect of the case that if you looked back and took a running count, you would probably find that more people participated when the moot court was for an en banc argument. In most of the en bancs, I remember nine judges heard the case, and I can’t even remember having that many people judging me at a moot court before one of my en banc arguments. You might come close to approximating the size of the en banc court when there was a joint moot court with interveners and attorneys from both the Commission and interveners’ law firms were on the court. -115- MR. SHELDON: Would you ever share drafts of your government’s brief with private parties ahead of time? MR. ARMSTRONG: Again, this is where I think probably even more so than on the moot court context, I had a more liberal – if that’s the right word – approach than some of my colleagues, but I definitely would share drafts and get feedback from on private parties. Again, subject very carefully you have to—you want to make sure you trust the person to be sensitive to the fact that it’s a government pleading we’re talking about here and not a private party pleading. And even though I certainly wanted the benefit of what was often the greater experience and wisdom, if you will, of the members of the private bar, I felt I could be sufficiently sensitive to make sure that we didn’t include anything in our pleading that was inconsistent with the institutional interests of the Commission. MR. SHELDON: Were you ever convinced to make a serious strategy change based on input from private parties? MR. ARMSTRONG: Yes, there were instances where an intervener’s counsel would persuade me that our brief could take a particular approach favored by interveners which was also consistent with the Commission’s institutional concerns. Often it was just a matter of what to emphasize. In getting specific, the years have gotten to me, but one example that comes to mind, which also ties in with your earlier question about writing a brief with a particular judge in mind, is the domestic satellite joint entry case involving Comsat and IBM. The Commission lost before the panel which held that the Commission’s responsibilities as the agency that enforces the Clayton Act in the communications common carrier area requires it to hold an evidentiary hearing on a potential competition issue. The argument of the potential competition proponents was that IBM and Comsat would individually enter the domestic satellite market if they were not -116- allowed to enter jointly, and therefore the Commission was sacrificing potential competition if it approved the joint entry. The panel held that their argument was at least serious enough to warrant an evidentiary hearing. When we were discussing the en banc issue, I remember very distinctly that Mr. Wollenberg – again, he wasn’t the only attorney, but I remember him as one who said that on the D.C. Circuit Judge Wright, Judge Skelly Wright, was a very influential judge, and ordinarily he would support what the panel had done. But in this particular case, Judge Wright could be on our side if he could be persuaded that a bird in hand is worth two in the bush. Specifically, entry by Comsat and IBM’s joint venture could provide strong competition against AT&T in the domestic satellite market. And Judge Wright in the recent ExuNet litigation had reversed the Commission with some very strong language for resisting MCI’s attempt to compete against AT&T in the ordinary long-distance telephone market. So the argument in discussing our strategy for the domestic satellite case was that Judge Wright would be sympathetic with an argument that if the Commission spends a long time holding an evidentiary hearing on whether Comsat and IBM will individually enter the market. This will only delay the time when AT&T, which is already in the market, will have to compete against them. If you really push the argument that there are better ways than an evidentiary hearing to deal with the competitive issues raised by the entry of a joint venture, you are likely to have Judge Wright on your side. That was the argument. MR. ARMSTRONG: That was their, they strongly thought that was the best chance that the Commission had. We all shared an interest in avoiding a lengthy evidentiary hearing. They argued that the way to win this case en banc is to get Judge Wright on your side by pitching this as the opportunity to get a strong immediate competitor to AT&T. And the way to do that is not to have an evidentiary hearing. There were a number of recusals; it was an unusual en banc case -117- in that we only had five judges on the Court en banc. Three judges upheld the Commission’s decision not to hold an evidentiary hearing in a majority opinion written by Chief Judge Wright. It was very apparent from that opinion that Chief Judge Wright accepted the argument that an evidentiary hearing would have been a source of great delay. And at the end of the day, the issues that you’re grappling with on potential competition, who would have done what under a different set of circumstances, are very difficult issues, they don’t really lend themselves very easily to specific findings and conclusions after an evidentiary hearing. The argument was, it might not have been all that helpful. In any event, it certainly would have taken a lot of time. There was no doubt in my mind before this case that it was worth listening to Mr. Wollenberg, and certainly if there had been any such doubt, what happened in that en banc opinion would have removed it. MR. SHELDON: Circling back to the American Security Council argument, was that your first en banc argument? MR. ARMSTRONG: No, I think we, the first en banc argument was the prehearing discovery hearing I mentioned a minute ago and the argument there. Again, that was a case, like the Daytona Beach comparative renewal case, the case where we felt we had really won on rehearing even though on the surface, it might appear otherwise. MR. ARMSTRONG: We had gone into the en banc proceeding with two panel opinions which had seemingly said that the Commission in these employment cases has to allow the petitioner to deny, which would generally consist of a public interest group of listeners within the station’s service area, usually with a public interest law firm in Washington representing them to engage in discovery before the Commission decided whether the case required an evidentiary hearing. The en banc court, however, gave the Commission discretion to avoid pre-hearing -118- discovery conducted by public interest groups. The en banc majority sympathized with the complainant’s dilemma in this area where most of the information is within the control of the broadcaster, and it’s hard for a person to make a prima facie case if your opponent has the information you need to make the case. The approach the en banc Court took was, they said the Commission staff, which is processing the renewal application, has got to not just simply accept the licensee’s opposition to a petition to deny, the staff has got to be prepared to read the petition to deny, to read the licensee’s opposition to the petition to deny––and it’s really when I say petition to deny, really a petition to deny was just really a petition to designate for an evidentiary hearing, and then the staff must stand ready to supplement the record. Specifically, go back to the licensee with specific questions seeking more detailed information about the licensee’s employment practices. The licensee responds to the staff-generated inquiry, a copy of the response is served on the petitioner to deny, the petitioner to deny then gets an opportunity to make a filing with the Commission responding to what the licensee’s response has been, and at that point with a supplemented record the Commission can then decide whether an evidentiary hearing is warranted. At the end of the day, the number of cases that actually ended up going to a full hearing were very, very few, but the supplemental record provided a basis in many instances for the Commission to take remedial action against a licensee with deficiencies in its EEO record, short of designating the renewal application for an evidentiary hearing. If I had to name one proceeding in which I’ve been involved which is most appreciated by the Commission’s professional staff from a practical standpoint, I would cite the case in which the en banc D.C. Circuit gave the Commission the discretion to use staff-generated inquiries as an alternative to pre-hearing discovery conducted by outside groups in these EEO petitions to deny cases. -119- MR. SHELDON: What was it like appearing before an en banc panel? MR. ARMSTRONG: Well, you almost always knew the judges on the en banc panel from other cases in which they had been on a panel, so it wasn’t like you’re going to meet three people up there that you’re familiar with and there are going to be six others up there that have never heard of you before, never heard you argue before. So, it wasn’t all that different from appearing before a panel. The one advantage you had, you mentioned earlier. Do you ever tailor your arguments? You already knew how three of the judges on the en banc court had decided the cases at the panel level. So, you had a bit of a head start, you already knew probably, you knew that the majority, the judge who had written the majority opinion for the panel was probably going to be the more difficult judge for you to deal with at the en banc arguments. You didn’t always know when you went in for a panel argument where trouble was going to come from, you could guess at it, but you had a much better indication in an en banc argument of the source of the tough questions and you also knew who was likely to be on your side. But, my recollection of my preparation is that it wasn’t all that different from what it was if it was just an argument before a panel. MR. SHELDON: And we’ve been talking today generally about the period from about 1975 to 1980 and now we’ve gone over a number of the most important cases. Do you remember any other disputes involving the Commission during that period that stick out in your memory? MR. ARMSTRONG: Well we talked about the Fourth Circuit case which was dealing with the equipment registration program. There is an unusual aspect of that Fourth Circuit litigation I did not mention before. Every judge on the Fourth Circuit was recused in that case except for one, Judge Emory Widener, who was down in southwest Virginia. -120- MR. SHELDON: Tazewell County, or something like that. MR. ARMSTRONG: I believe that’s correct. He had been joined on the panel in the initial case by two judges from the Fifth Circuit, I’m sorry––one judge from the Fifth Circuit, Judge–the esteemed, very esteemed Judge Tuttle and another distinguished judge, Judge Hastie, from the Third Circuit. Judge Widener was I think you’d probably say very hostile to the Commission’s position. In his mind, you’re involving intrastate communications here and the Commission in Washington is imposing rules for attaching telephone equipment to the telephone network that are going to affect intrastate communications, and the intrastate regulators don’t like these rules. Judge Widener thought this was not an area where the Commission had jurisdiction. He had dissented very strongly from the first opinion, but he’d been outvoted by Judge Tuttle and Judge Hastie. About the same time as the release of the decision upholding the Commission’s jurisdiction, the Commission had come out with – there had been no stay imposed in this area, so the Commission, while the Court was deliberating on the jurisdictional case, the Commission was in the process of coming out with its order adopting the rules that would govern if the Commission won on the jurisdictional issue. A motion for stay of the order adopting the rules was up for the decision in the Fourth Circuit as about the same time that court upheld the Commission’s jurisdiction, but the only Fourth Circuit judge on the panel had strongly dissented and he was the only judge on the Fourth Circuit, because of the recusals, who could rule on the stay motion. Not surprisingly, Judge Widener granted a stay. This is one time in which an FCC Chairman, Chairman Wiley, was very upset. I had not been involved in the Fourth Circuit ligation on the jurisdictional issue, and when the motion to stay the rules was being litigated, I had been preoccupied with preparing for an oral argument in the Home Box Office case. When I returned to the office after that argument, I was -121- in a group of staff members summoned to the Chairman’s Office to discuss the stay Judge Widener had just ordered. There was much discussion about whether Judge Widener, who had been so deadest against the Commission in his dissent in the jurisdictional case, should have been sitting on this motion for stay. This was the only case I can recall where serious consideration was given to trying to get a judge recused from a case. And you talked earlier about discussions on litigation with the Justice Department. The Fourth Circuit litigation was one high-profile situation where, unlike the Home Box Office or newspaper divestiture case or later case on the IBM/Comsat joint venture case, the Justice Department was on our side. So, in this particular instance, the Department’s attorneys were very active in coming to the decision whether to try to remove Judge Widener from the case. Ultimately, we decided this was something that should not be done and the better thing to do is just get on with it and Judge Widener will not be the only judge sitting there when this case is agued and decided. As it turned out, the merits panel included in addition to Judge Widener, Judge Tuttle again, but not Judge Hastie because he had died of a heart attack in Philadelphia on, I think, the very day he and Judge Tuttle came out with their decision upholding the Commission’s jurisdiction. Judge Reeves from the Fifth Circuit replaced Judge Hastie on the panel for the second Fourth Circuit case. Judge Widener, with his southwest Virginia roots, succeeded in having the argument held in Abingdon, VA. It was on an expedited briefing schedule and there were, this was an unusual case in that the Court insisted that the government and the private parties who were supporting the government, file a brief under the same cover. This really did arouse some consternation because obviously it’s one thing in preparation for a brief to have consultation with private parties, and I strongly defended that practice and believe in it, but even I was a little reluctant -122- about actually filing a brief in which we’re under the same cover. So ultimately a compromise I think was worked out and there was to be a joint brief and then everybody at the end of the brief could have a very short brief that was individually signed. But it was putting together a joint brief on a case of this magnitude with all of these high-powered clients, high-powered law firms. It made for an extraordinarily busy summer, this was the summer of the bicentennial. Judge Widener had lost none of his hostility to the Commission’s position and it was a very, very difficult argument which he dominated pretty badly. We were hoping that Judge Tuttle and his colleague from the Fifth Circuit, Judge Reeves, would not ultimately be persuaded and that’s the way it turned out. The, it was another two to one decision, certiorari was ultimately denied, but it was a very fun experience. I had grown up not very far from there, seventy miles away from there. And there was this beautiful old inn in Abingdon, the Martha Washington Inn, and it was you know, all of these high-powered lawyers from D.C. and former Governor Sanders of Georgia was hired to represent the state’s interest in this argument. And we were all in this lovely old hotel which I had visited frequently with my Tennessee family. On one side of the dining room on the night before the argument were the attorneys for the federal government and its supporting interveners. Petitioners’ attorneys and their interveners were on the other side. MR. SHELDON: I’m surprised they had enough hotel rooms to house you all. MR. ARMSTRONG: Some of us were elsewhere for the night in nearby hotels. We were very gratified about six months after the argument when we got the 2-1 decision in our favor, but there was no time to celebrate because several days after the Fourth Circuit decision, the D.C. Circuit decided the HBO case concerning the pay cable anti-siphoning rules, which sought to ensure that popular movies and sports events would be available to the public over-theair television stations. We lost badly on the rules themselves, but probably the most significant -123- part of that opinion concerned the panel’s imposition of ex parte requirements for informal rulemakings in an opinion written by Judge Wright. Before the argument, we got some indication that this was a matter of concern to at least one member of the panel, who we thought was almost certainly Judge Wright. There was a pre-argument order for the Commission to produce a list for him of the ex parte contacts with decision makers during the rulemaking. MR. SHELDON: And by “him” who are you referring to? MR. ARMSTRONG: Well, giving it to the Court, but it seemed clear to us that Judge Wright was taking the lead on this issue. The request for a list of ex parte contacts was a particularly sensitive one for the agency because this proceeding dealt with movies. Many prominent figures, including some Hollywood stars, had visited the Commissioners in their offices to make ex parte arguments pro and con concerning the pay cable anti-siphoning rules. So then here comes an order from the Court requiring that the record be supplemented with the people who had made contact with the Commissioners concerning this rulemaking, and it was a very interesting submission to the Court because it revealed that Commissioner X had been visited in his office at the certain time by this or that well-known celebrity. When the opinion came out, the panel held, I believe their opinion is susceptible to this reading, that an agency should not have ex parte communications in rulemaking proceedings. Everything should be on the record. The Court was not going to make the Commission do this proceeding all over again, but it wanted the record to show what the ex parte communications had been, and they wanted to allow parties an opportunity to respond to this. It so happened that on the week-end after the panel issued its opinion, the annual convention of the National Association of Broadcasters was held in Washington and in light of the panel’s ruling against ex parte contacts, it looked like the Commissioners and other decision makers would not be able to do as they usually do, and be at -124- the convention and mingle with the people who had interests in proceedings. The attorneys were busy that weekend trying to figure out whether the Commissioners and the staff could participate in convention activities. Ultimately, the D.C. Circuit accepted the validity of ex parte communications, provided the participants described in the record what was discussed. Allowing ex parte communications is important because in the minds of many, including myself, if ex parte communications are not allowed, a party that wants its arguments to get to a commissioner is at the mercy of the Commission’s professional staff. I can certainly sympathize with parties who wished to state their arguments in their own words and avoid the risk that something could be lost when the staff translates these arguments. One more development in this case relates to our earlier discussion about when to seek en banc review. We didn’t go for en banc in that case because the panel included Judge MacKinnon. When a dissent from Judge Mackinnon was not forthcoming, we concluded that an en banc petition wouldn’t stand a chance. About three months after the Home Box Office opinion, there was another panel of the D.C. Circuit, which did not include Judge Wright, which also had before it a challenge to the permissibility of ex parte contacts in a rule making, this time in the context of the Children’s Television rulemaking. The proponents of the ex parte argument in the Home Box Office case were also before the Court in the Children’s Television case, and a different panel, headed I believe by Judge Tamm, did not buy the argument. It was obvious from the opinion of the panel that Judge Tamm’s panel did not share the views of Judge Wright’s panel three months earlier. Judge MacKinnon was the one common link in both cases. He had been on the Home Box Office panel in the spring, and three months later he was on this panel, and he joined this opinion by Judge Tamm which had been very critical of the earlier opinion. Judge MacKinnon had a very short concurring statement in which he said basically, I -125- joined the earlier opinion, but upon further reflection, I now think that the views that have been taken in this later opinion more accurately reflect mine. Had we known that, in March, of course, we could’ve gone for an en banc in the Home Box Office case, but in that unusual situation where we didn’t know that we had a sympathetic judge until, by this time, I think the train was already going towards the Supreme Court. MR. SHELDON: And I think I’ve run out of time with you today because you’ve got another appointment to get to, so let’s stop there, and we’ll pick up again next time, maybe with your Metro Broadcasting experience. Thanks very much. -126- ORAL HISTORY OF DANIEL “MACK” ARMSTRONG Fourth Interview – June 21, 2012 This interview is being conducted on behalf of the Oral History Project by the Historical Society of the District of Columbia Circuit. The interviewee is Daniel “Mack” Armstrong and the interviewer is Matthew S. Sheldon. The interview is taking place at 901 New York Avenue, NW, Washington, D.C., at the law offices of Goodwin Procter on June 21st, 2012. This is the fourth interview. MATTHEW SHELDON: Mr. Armstrong, thanks for joining us today. We have a number of wrap-up topics planned for today including your retrospective thoughts on FCC chairmen over the years, your interaction with other federal agencies during your time at the FCC, and important FCC decisions during your time there and your most memorable D.C. Circuit Court appearances. I’d like to begin, as we discussed, with your thoughts on the FCC chairmen that you’ve worked with over the years. MR. ARMSTRONG: We spoke before about Chairman Wiley who was responsible for my becoming the Chief of the Litigation Division, and I was very laudatory of him then and have no reason to say anything different now; I won’t spend any more time on him. He was – I actually began at the Commission when Chairman Burch was there, and I was briefly introduced to Chairman Burch but at the time he was there, I was a staff person in the Litigation Division, and although his special assistant, Mr. Lichtenstein, was really responsible for opening the door at the Commission for me, I don’t recall any interaction with Chairman Burch. He left within a year after I began there, so really my first chairman was Chairman Wiley. He was succeeded by Chairman Ferris in the Carter administration and I did not, we had personal pleasantries speaking to each other, I didn’t spend a lot of time working directly in the office with Chairman Ferris. -127- I do remember that, I believe it was when the Pacifica decision came out, that decision came out about three weeks after the Supreme Court’s decision in the newspaper/broadcast cross-ownership case. Reading between the lines and in light of a subsequent proceeding involving the Chairman, Chairman Ferris, I believe it is fair to say that, from a policy perspective, if not a legal perspective, he was not a supporter of the results in those two cases. After the Pacifica decision, he smiled and spoke to some of the litigators and said something like when are you people going to win a case that I can live with. He made it very clear almost immediately after Pacifica that he intended to give it a very narrow reading. And he thought that the cases in which the Commission would be punishing the broadcaster for indecent broadcasting would be very few and far between, as they were for the next decade until the Commission began to be more proactive on the indecency front. The newspaper/broadcast cross-ownership case, which he also mentioned in that remark about bringing a case he could live with, did precipitate probably one of the more unpleasant personal situations in which I found myself at the Commission. I spoke earlier about a license renewal proceeding involving a television station in Daytona Beach and gave that as an example of a case where our rehearing petition was denied, but the panel essentially gave us the relief we were seeking by rewriting its opinion. Before the petition for rehearing was filed, however, there were some tense moments at the Commission. The Commission was frequently divided in these comparative renewal cases, but usually there was a majority in favor of renewing the incumbent and denying the challenger. That was the result in the Daytona Beach case. In an opinion issued shortly after the Supreme Court’s decision on the divestiture issue in the newspaper cross-ownership case, and written by Judge -128- Wilkey, a respected and generally conservative judge, the D.C. Circuit remanded the Daytona Beach proceeding. The opinion was sharply critical of what it considered was the Commission’s bias in favor of incumbents in comparative renewal cases. The Chairman seemed to believe as a policy matter that it was important to stop invariably preferring the incumbent in a comparative licensing proceeding. Two of the three other Democrats agreed with the Chairman’s basic position. The three Republican commissioners and one of the Democrats, Commissioner Quello, who was a more conservative-oriented Democrat, supported my recommendation for a stronglyworded petition for rehearing. I belonged to the group that believed the D.C. Circuit panel had erred because it paid almost no attention to the recent Supreme Court cross-ownership decision, which we believed strongly supported the validity of generally renewing the incumbent’s license when the incumbent was challenged at renewal by a competing applicant. We also believed that the panel’s position on the renewal expectancy issue conflicted with an earlier D.C. Circuit opinion in the Greater Boston comparative renewal case. Our group very much wanted to go for rehearing en banc. There was also pressure from the broadcast industry to file that type of petition because the industry feared that the panel’s opinion put many, many broadcasters at risk of being displaced in a comparative proceeding because the D.C. Circuit seemed to say that in order for an incumbent to get a renewal expectancy, it must have an exceptionally good programming record. And the industry lawyers argued that by definition, exceptional is a description that can apply to only a few. Instead of exceptional, a substantial or solid record should be sufficient. MR. SHELDON: How did the industry put pressure on the FCC? -129- Mr. ARMSTRONG: Well they would – certainly industry lawyers would meet with attorneys in my shop, and you have to be careful because an ongoing adjudicating proceeding is involved and there are ex parte limits on the extent to which you can speak with a Commissioner. There is, however, a litigation exception, you can always talk to the General Counsel’s office about litigation matters. And I believe – there was a way I suspect in which members of the Commission were aware of the fact that the panel’s opinion was causing great consternation among the ranks of broadcasters and their attorneys. The Chairman didn’t oppose seeking rehearing en banc, but the Chairman favored what in my judgment would have been a narrowly crafted petition for rehearing en banc, and two members of the Commission agreed with him. The other four members of the commission were sympathetic to my recommendation that we needed to come on very strongly in challenging the panel’s decision. My boss, the General Counsel, is an appointee of the Chairman and not surprisingly, he supported the Chairman’s position. So this was one of the rare occasions in which I was before the Commission in a closed meeting, pushing for a recommendation that went against the wishes of the Chairman and went against the wishes of the General Counsel. But there were four out of seven commissioners there who prepared to accept that recommendation. So it was accepted, we filed a very strongly worded petition for rehearing en banc. We have already discussed what happened at the D.C. Circuit after that petition was filed. MR. SHELDON: Did you ever get a sense of any hard feelings from Chairman Ferris? Mr. ARMSTRONG: No, I didn’t and likewise with the General Counsel. You know I was always, for the remainder of their term, I was somewhat reticent when I was around them -130- because I was aware that had not been a pleasant encounter, but every contact was extremely pleasant from then on, it did not result in any hard feelings. MR. SHELDON: What kind of governing style did Chairman Ferris have? MR. ARMSTRONG: I always thought he was – he didn’t have his majority in this particular case, he lost one of his fellow Democrats – but I always thought he was one of the most effective chairmen in terms of knowing exactly what he wanted to do when he came here and ensuring that he had four votes to do it. He subsequently indicated that denying a renewal application I think was something from a policy perspective that he believed would be beneficial. He did not succeed in using the Daytona Beach case to accomplish that result. He did, however, before he left the Commission, succeed in getting a 4-3 Commission vote to deny the renewal applications of three large-market television stations licensed to RKO. Commissioner Quello remained on the Commission and he dissented, but this time, a recent Republican appointee agreed with three Democrats and the three RKO renewals were thus denied by a 4-3 vote. There were some character qualifications issues against RKO. It was challenged by competing applicants, but the Commission majority decided the case against RKO on non-comparative grounds – before you reach the comparative part of the proceeding, the incumbent seeking renewal has to be found qualified – Chairman Ferris’s majority argued that RKO was not qualified to be renewed in Boston, New York, and Los Angeles. That needless to say precipitated a very high-profile appeal before the D.C. Circuit. The D.C. Circuit, in that appeal, sustained the denial of the renewal application in Boston but did not uphold the denial in Los Angeles and in New York. I can’t read his mind, but I suspect that was a result which was consistent with the Chairman’s belief that it would be beneficial to have at least one case where one of the big boys did not get renewed. The Chairman had complained -131- that, in cases where an incumbent broadcaster did not get a license renewed, all too often it was a very small fish, and he thought it would be healthy for a big fish to suffer that sanction. MR. SHELDON: Did you get a strong sense during Chairman Ferris’s time that he was trying to change the direction and policy of the Commission? MR. ARMSTRONG: He was an activist chairman. He was really the chairman that spearheaded the deregulation of cable television. He was very sympathetic to the position of the cable industry that the commission imposed too many regulations and restraints on them, which were designed to protect the over-the-air broadcasting industry from competition and again, in a very controversial policymaking proceeding, the chairman marshaled his majority for deregulating cable, that case was litigated in the Second Circuit, and I believe the deputy general counsel, David Saylor, successfully argued that case. MR. SHELDON: Who followed Chairman Ferris? MR. ARMSTRONG: Chairman Fowler who was President Reagan’s appointee, and there was a very brief interval before Chairman Fowler got there. But after the Reagan administration had assumed office, in which a very senior member of the Commission on the Republican side, Commissioner Bob Lee, served as the Chairman. Chairman Ferris was still in his office. He was still a member of the Commission for about three or four months, but the effective powers of the chairman were really exercised by the senior Republican, Commissioner Lee, for the first three or four months of the Reagan administration. I never knew this first hand, but I was led to believe that Chairman Ferris who was aware that some of his policy decisions had been very controversial, and had aroused strong opposition on the Republican side, consulted with one of his predecessors, Chairman Burch, who was a Republican and an understanding was reached. Chairman Ferris would remain a member of the -132- Commission; he would not submit his resignation for several months. But from January until May, he would not exercise the powers of the Chairman’s Office; that would be done by the senior Republican who was Commissioner Lee. Acting Chairman Lee, during that brief time, was very instrumental in pushing along the development of cellular telephones. As hard as it is to believe now, when I first came to the Commission, and for about the first six or seven years I was there, there weren’t any cellular telephone licensees out there. MR. SHELDON: I didn’t mean to interrupt. Continue your thoughts on the Chairman. MR. ARMSTRONG: No, I think that was basically the point I wanted to make about Chairman Ferris. He was not a conciliator in the sense that he would try very hard to get the largest possible majority for important policy decisions. What he cared about was the bottomline result, and if it had to come about by a 4-3 vote, as opposed to a 7-0 vote, he could accept it. MR. SHELDON: What were your thoughts when Reagan made his appointment for Chairman? MR. ARMSTRONG: Mark Fowler, who was his appointee, had been a broadcast attorney in a D.C. communications. I think it was a communications boutique firm. He was known during the transition period as a longtime supporter of then candidate Reagan, even, I think, in the nominating contest going back as far as ’76 when Reagan had almost defeated President Ford. It did not come as a great surprise when he became the nominee for Chairman. And he came in very outspoken on the deregulatory side. Very critical of the Fairness Doctrine, which was probably one of the things he’s best remembered for; very late in the Reagan administration, there was a D.C. Circuit decision that clearly established the Commission’s authority to repeal the Fairness Doctrine. -133- There was a view during much of Chairman Fowler’s tenure that the Fairness Doctrine was statutorily required by Section 315 of the Communication Act. So he – the approach he took was to try and create a record for the ultimate demise of the Fairness Doctrine, but without going so far as to repeal it given that widely held understanding of Section 315. The green light from the D.C. Circuit came a few months before Chairman Fowler departed. My memory is a bit hazy but whether the proceeding to repeal the Fairness Doctrine was completed before Chairman Fowler burned turned the reins over the Chairman Patrick. I think, however, that the repeal occurred under Chairman Patrick’s leadership. Much of the groundwork was clearly done, however, during Chairman Fowler’s time. MR. SHELDON: What was Chairman Fowler’s governing style like? Did he come in and make sweeping changes, or was he an incrementalist? MR. ARMSTRONG: I would say he was aggressive. One thing did happen during his regime. The Commission went from seven commissioners to five. This was approximately a year into his administration and there was a senior Republican member of the commission. His appointment came up for renewal. Chairman Fowler wanted to replace that commissioner, who was a Republican but of a different philosophy from Chairman Fowler. He wanted to replace him with the General Counsel who had been appointed by Chairman Fowler, and who was more in line with Chairman Fowler’s views. The General Counsel, who was my boss and had once worked for me as a junior attorney when I first became the Chief of the Division, had become a controversial figure in some of his dealings I think with members of Congress. So there was some resistance to putting him on the Commission. A year after this vacancy came up there was a member, a Democrat on the Commission whose turn came up, and when all the smoke cleared, I believe the arrangement was they would -134- give the Chairman’s preferred Republican appointee a short term, for like a year, and then his term and the regular term of the Democrat on the Commission would expire, and the deal was those terms, those two commissioners will serve out their terms, those seats on the Commission will be abolished when that happens. The effect was the Commission went from a seven-person commission to a five-person commission. I think we talked before about the policies of the Commission which tried to give a break to minorities and to women in licensing policies, trying to have more women owners and more minority owners. Chairman Fowler was skeptical about the constitutionality of those policies. And he was aggressive in trying – there was a decision of the D.C. Circuit, if I remember correctly, on that area. I have sort of forgotten what the facts are, but the issue came to a head as a result of some proceedings in the D.C. Circuit, and Chairman Fowler very much wanted to use the decision in the Steele case by some of the more conservative judges on the D.C. Circuit who found one of those policies to be invalid, as a basis for trying to accomplish his preferred policy result which was to drastically cut back on these policies. The result, again, was a painful time for me because from the perspective of my office, there seemed to be a basis for challenging on rehearing the court’s decision, and the decision thus should not be uncritically accepted and made the catalyst for a broad proceeding looking into the validity of the minority ownership policies in general. MR. SHELDON: How do you think Chairman Fowler viewed you? As a good Nixonian Republican? MR. ARMSTRONG: Well that’s an interesting question because obviously I had come to the Commission during the Nixon administration, and I always, I consider myself to be on the conservative side of the Republican Party. If he even thought about it, Chairman Fowler -135- probably concluded that I was not in his wing of the Republican Party. He always treated me, however, with great respect. When he came around to visit the different offices very early in his tenure, he came in to my office, and I think he was appalled to see that in addition to having a messy office I had one of those very old-time rotary telephones. I wasn’t being singled out, but I remember he was one who I think at least got us into the more modern age with better telephones, and I remember his commenting on that. We later had a proceeding at the Commission that ultimately went to court concerning how the Commission should proceed in these large – in the case of these large corporate licensees, which become the subject of a corporate proxy fight. Either a proxy fight or a tender offer, and that of course is a common occurrence in corporate law. It created some difficulty when the corporation held FCC licenses, because the Communications Act prohibits the unauthorized transfer of control of broadcast licenses, and if there’s a successful proxy fight, or a sufficient number of shares are tendered in a tender offer, corporate control can change before the new controlling interest has had an opportunity to come to the Commission and obtain approval. So the Commission was trying to be creative. I don’t remember the specific facts, but Chairman Fowler, I believe, was even more creative than the majority of the Commission, and I had from a legal point of view, supported the majority’s more restrained approach to trying to adopt something that could pass judicial muster. The Chairman didn’t get his way, but he was very nice, not too many times, I was specifically called by a Chairman and asked personally to argue the case when it got to the D.C. Circuit. But this is one time I remember after he lost the vote, he knew the case was going to the court. And he turned to me and said, “Mack, I hope you’re arguing this case. I want you to argue it.” So I took the argument and we were successful in the initial litigation on that issue. A couple years -136- later, Judge Bork wrote an opinion which basically indicated that review was premature in these cases. MR. SHELDON: You mentioned Chairman Fowler’s particular stripe of Republican. Were there any grumblings among the more permanent staff at the FCC regarding Chairman Fowler’s reign or how he handled his term? MR. ARMSTRONG: I think this is a good opportunity again to emphasize that the career staff viewed themselves as professionals, and they viewed themselves as there to try and if there were a way to do what the Chairman wanted done they, it was their job to try to do it, and I have no doubt that there was private concern about the Chairman’s generally conservative political philosophy. But I don’t recall a single incident where anybody said, I don’t want to work on that matter because we will be doing something that I don’t approve of. The Fairness Doctrine proceeding was obviously very controversial, and the Chairman’s views on the policies favoring more minority and women owners, obviously were as well. And Chairman Fowler even began to revive indecency enforcement. I mentioned earlier that Chairman Ferris said we’re not going to have many indecency enforcement cases. Just before Chairman Fowler left, he began a more aggressive approach to indecency enforcement. And there was some – it didn’t affect what anybody did in their job, but I do think I remember over some informal conversation across the street at a very nice establishment in our area after work, there were people who said Chairman Fowler has had as a hallmark of his regime, from the beginning, trying to repeal the Fairness Doctrine, and he believes broadcasters should essentially be on the same plane as newspapers when it comes to the First Amendment. He didn’t believe that the Red Lion regime of reduced First Amendment protection for broadcasters was correct. If it ever were correct it certainly wasn’t correct in light of the developments since the Red Lion -137- decision came down. But then these people, having taken note of that, said that now about the time he’s leaving the Commission, he is going to be remembered for a more aggressive enforcement policy on indecency. This school of thought viewed censorship as being much more serious under the first amendment than the Fairness Doctrine, which didn’t involve censorship. It merely involved a requirement affirmatively to put on certain programming. These people smiled wryly, and said, it looks like the Chairman has it backwards. But it never, never resulted in any difficulty in getting people to try to do the best they could. MR. SHELDON: What led to Chairman Fowler’s departure? MR. ARMSTRONG: He’d been there from ‘81 until ’87, and very few Chairman served for the full time in office of the President who appointed them. MR. SHELDON: And then Chairman Patrick came in. MR. ARMSTRONG: That’s correct. He had been a member of the commission during the latter part of the Fowler years. I thought particularly highly of him because his General Counsel had been his special assistant, and she maintained a very close – he had great confidence and great trust in her, and she in turn had great – a big, wonderful relationship I think with her staff, and she very much, she was one of those general counsels who actively involved her staff in many of her discussions with the Chairman about his agenda. I’m certain, I’m sure she had many non – many private meetings and private conversations with him. I don’t mean to say that we were on the same level she was on in dealing with the Chairman, but she seemed to value our input, and she frequently was happy to have our input on display directed to the Chairman. So we had a lot of interaction with the Chairman’s Office under Chairman Patrick, and I liked it very much. I always thought he was particularly good at inviting people to express their views even when those views differed -138- from his… he was as resolute in pursuing his policies as any chairman I had known. In ’86 the Democrats won back the Senate, so he was dealing not only with the House of Representatives controlled by the opposition party, he was also dealing with the Senate that was controlled by the opposition party. And he was controversial with some of his conservative positions, and we did not, I believe we only had three commissioners for most of the time that he was the Chairman because they couldn’t get confirmation of anyone to fill two vacancies so we basically operated with a three-person Commission for most of the time he was there. He was the Chairman for only about two years. He left shortly after President Bush 41 took over. Another Republican, Sikes, was appointed Chairman, but Chairman Sikes I did not know nearly as well on a personal level as either Chairman Fowler or Chairman Patrick. His tenure illustrated a situation in which a Chairman effectively used the courts to accomplish one of his major policy goals where he could not obtain a Commission majority. The specific proceeding that I’m talking about concerned the financial interest and syndication rules. We spoke in an earlier session about my involvement in the litigation of the prime time access rule. That rule had been adopted in the early ‘70s along with two other rules, the financial interest and syndication rules, in a rulemaking that sought to reduce the dominance of the three networks NBC, CBS and ABC. The Motion Picture Association, led by Jack Valenti, was very vigorous in its defense of the financial interest and syndication rules, which essentially erected a wall between the networks and the Hollywood movie studios. And when the Hollywood movie studios, which also produced popular network television shows, were negotiating with the networks for the rights to televise these shows, the networks could not obtain a financial interest in the show as a condition of agreeing to show it on the air. And then when the shows had finished their network runs, and they went into reruns and into the syndication market, the -139- networks were walled off from that the syndication business. The networks very much wanted to get rid of those rules, and the Motion Picture Association of America, representing the big studios in Hollywood, very much wanted to keep them. So there was a truly vigorous lobbying war going on at the Commission. Chairman Sikes clearly was a deregulator on certain issues. It turned out, however, that one of the other Republican commissioners, Commissioner Marshall from North Carolina, became sympathetic to the studio’s position, and she would not support the Chairman’s preferred approach. Only one of the two Democrats, Commissioner Quello, voted with the Chairman. The third Republican commissioner, Commissioner Barrett, also declined to support the Chairman’s position, and Chairman Sikes thus ended up on the losing side of a 3-2 vote. The case became the subject of some maneuvering to see what court would get it. And the broadcast interests, they won the lottery, so to speak. They found a relatively small television licensee in, I believe it was South Bend, Indiana, in the Seventh Circuit, and that party – that broadcaster – was brought in to the case, and clearly as an aggrieved party had standing to file a petition for review. The broadcasters believed the Seventh Circuit would be a very favorable circuit in which to challenge the Commission’s failure to repeal these rules. The studios, on the other hand, very much preferred for the case to be heard in the Ninth Circuit. The Seventh Circuit won the lottery. MR. SHELDON: How did the lottery work? MR. ARMSTRONG: The building down by Union Station, there’s a – the Federal Judicial Center. They conduct – whenever the same order is challenged in more than one circuit within a certain period of time after the order is released, it’s our job at the Commission to send the petitions to the Federal Judicial Center which then conducts a lottery to pick the circuit to which all petitions for review are then transferred, so there’s only one circuit that ends up with -140- the case. We did that, followed that procedure in this case; I think some of the staff in the Judicial Center couldn’t quite figure out what was going on because during the 10 days or so between the commencement of the process and the conduct of the lottery they were getting all of these media inquiries, particularly from the Hollywood publications, that cover the studios in Hollywood. They were somewhat overwhelmed as to why these celebrity reporters were calling up to find out when they were going to do their job of conducting a lottery. But ultimately that’s how it got settled. And when the case got to the Seventh Circuit, the Seventh Circuit had its own internal procedures to pick a panel, and one of the Judges on the Seventh Circuit who was on the panel was Judge Posner. I was later told by some of the network attorneys that their strategy all along had been to hope for two things. They were hoping, one, that somehow or another the Seventh Circuit emerges as the court that gets this case, and two, they were hoping that either Judge Posner or Judge Easterbrook would then be on the panel. They got Judge Posner. This was a very tough case because normally you have a situation where you’re defending a position that the Chairman has taken so you work directly with the Chairman and his key staff people in preparing the brief. In this case, we had a monster at the Commission. We had the Chairman against us. That created a little bit of an awkward situation with some of the staff people at the Commission who generally answered to the Chairman and who had actively written the proposed order for the Commission, which turned into a dissent. The litigators thus had to report to and work with the three Commissioners in the majority who favored a lukewarm approach that didn’t really make anybody completely happy, but it was more supportive of the studios than it was the networks. We were trying to write a brief where we had to satisfy three masters, each of whom had legal assistants that wanted to have a hand in the brief. One of my staff attorneys in this particular case won my support forever because several times I just had to tell her in the course -141- of writing the brief, you’re going to have to go up there and deal with those three legal assistants who are pulling you in three different directions to try to get a brief filed because I can’t take it anymore, I’m too old. But I was punished because I had to go before Judge Posner for the oral argument in the Seventh Circuit, and he was predictably very, very difficult for the Commission, and he did come down with a very stinging decision. And there was one more proceeding in which – this time I had a happier appearance before him – in which he deferred to the Commission in terms of the timing of the repeal of the syndication rule. After the first opinion, the financial interest rule, if I remember correctly, was gone. The syndication rule, the Commission asked for a couple of years to phase it out, and we got that, but at the end of the day Chairman Sikes’s preferred policy approach was adopted, but it was not adopted by the Commission. It was adopted as a result of what the Seventh Circuit did. MR. SHELDON: And who followed Chairman Sikes? MR. ARMSTRONG: When the Clinton administration took over, Chairman Sikes left almost immediately. The senior Democrat on the Commission, Commissioner Quello, became Chairman Quello for most of the first year of the Clinton administration. You might not expect that someone who was clearly intended to be the Chairman only on an interim basis would be as effective as he was. But Chairman Quello was a very effective Chairman, and the thing that stood out about him in my memory was that he didn’t really seem to mind sharing the glory with his colleagues on the Commission. He shared worked with them as well. He did not insist that everything must be the work of his office, and then shares with the other offices under circumstances where the most they can do is object, but they don’t really have a feel that they are a big part of the decision-making process. Chairman Quello, I think, made his colleagues see themselves as very much a part of the process. It was an extraordinarily busy time for the -142- Commission because the Cable Act was passed in ’92. That Act gave the Commission a lot of rulemaking proceedings to conduct and sometimes placed a timetable on those proceedings , which meant that Chairman Quello’s year as Chairman was a very, very busy time spent satisfying the requirements of the Cable Act. And what I think could have been a very difficult time given the fact that the Commission was under interim leadership. It turned out that the first 10 months of ’93 were a very productive time for the agency which worked very well. The permanent chairman for President Clinton was Chairman Hundt. He came there probably around Thanksgiving of ’93, succeeding Chairman Quello. Chairman Quello remained on the Commission until I believe the early months of the second Clinton term. He died recently at a very old age. MR. SHELDON: With Clinton’s election after twelve years of Republican chairmen, what was the feeling at the Commission, particularly among the staff? Was there concern that there would be widespread changes or policy shifts? MR. ARMSTRONG: I don’t remember that there was. As I say we were well into the Clinton administration before the – I won’t call Chairman Quello a Clinton man because he’d been there since ’73, and although he served as Chairman for about a fourth of the first Clinton term with the Clinton administration’s blessing, I wouldn’t call him a Clinton person. So we were fairly far into the Clinton administration when the Clinton-appointee chairman arrived, and he hadn’t been there very long until the Republicans won the Congress back including the House of Representatives this time and then we had the government shutdown in ’95, and then the Communications Act of ‘96 was passed which was very much like the Cable Act of ’92 in that it put a lot on the Commission’s plate. A lot of rulemakings dealing with the introduction of competition into the local telephone markets, and it was just a very, very busy time going on. -143- Chairman Hundt was a somewhat controversial chairman and didn’t have a very good relationship with Commissioner Quello. Commissioner Quello, before Chairman Hundt arrived, generally in his 25 years or so as a member of the Commission, tried to give his vote to a chairman, of whichever party; he tried to be supportive of the various chairmen. His relationship, however, with Chairman Hundt, I am not giving away any secrets, this was public knowledge, was prickly to say the least. MR. SHELDON: What do you think caused that prickliness? MR. ARMSTRONG: To some extent it was probably their views. Chairman Hundt was the more typical person you would expect to be appointed to a position like that in a Democratic administration. Chairman Quello was a more conservative Democrat. I suspect it had something to do with the philosophical difference. A temperamental difference. Mr. Quello was sympathetic with the established interests, probably was also a contributing factor, particularly the broadcasters. He had lots of friends in the broadcasting industry. I don’t think Chairman Hundt had that background, and I don’t think he felt the need to cultivate friendships with the established broadcast industry. MR. SHELDON: Was there a difference in the viewpoints in commissioners and general counsel over the years as to whom the relevant constituency was, whether it was broadcasters or whether it was the public? MR. ARMSTRONG: I mentioned earlier that Chairman Ferris was very sympathetic to the cable industry’s desire to be deregulated. When Chairman Fowler took over, he was a deregulator across the board, but I think he was perceived to be particularly sympathetic to broadcasters. I would certainly think of the Commission under Chairman Ferris as an ally of public interest groups, but certainly some of the things he did were, he was responsible for a lot -144- of changes adopted as a part of radio deregulation and that proceeding upset the public interest community. They didn’t support the deregulation. On the other hand, the Ferris Commission was a supporter of policies intended to increase minority and female ownership of broadcast stations. At the career level, those of us on the staff spanning different administrations always assumed that the position of the public interest groups was more likely to get a sympathetic hearing and gain traction when the Democrats were in charge. Ironically, however, what I suspect the public interest community would regard as its finest hour in an FCC proceeding came with the help of the Third Circuit, when the Commission was under Republican leadership. The Commission in the early 2000s under Chairman Powell sought to relax the broadcast ownership rules, something that was strongly opposed by public interest groups. The order Chairman Powell wanted was passed by a sharply divided Commission on a party line vote was stayed by the Third Circuit at the behest of public interest groups. And those groups also subsequently prevailed on the merits of their challenge to the relaxation of these rules. MR. SHELDON: Who followed Chairman Hundt? MR. ARMSTRONG: Chairman Bill Kennard and that was another very satisfying moment for the General Counsel’s Office because Bill Kennard was the Commission’s General Counsel under Chairman Hundt. Bill was initially appointed to replace Commissioner Quello as a member of the Commission, but not the Chairman. Commissioner Quello had frequently been able to get reappointed by presidents of both parties, but this time, I assume in no small part because of the strong opposition of Chairman Hundt, the Clinton administration wanted a different Democrat to have that seat. I believe that before Bill Kennard was ever confirmed for that seat, Chairman Hundt decided to resign from the Commission and Bill was then -145- subsequently confirmed to take Chairman Hundt’s place in the Chairman’s Office. When you think of the Clinton years, you think first of Chairman Hundt and then Chairman Kennard. MR. SHELDON: What were your impressions of Chairman Kennard as a chair? MR. ARMSTRONG: Well, we had been very, very fond of him, working with him as the General Counsel. I remember that the general counsel who succeeded him, Chris Wright, dealt with Bill Kennard once he became the Chairman, a good bit more than I did. I didn’t deal with him on a personal level nearly as much after he became Chairman. The one meeting I do recall occurred after the D.C. Circuit’s decision in the Lutheran Church case which struck down longstanding rules dealing not with ownership, but instead simply with the employment of minorities at broadcast stations. The rules had been around for a good while, and they were challenged in an adjudicatory proceeding involving a broadcast station of the Lutheran Church. At the outset, our office saw this as a case in which the real question was whether the rules were being applied in a manner that abridged the free exercise rights of the Lutheran Church. And we didn’t see it as a case in which the facial validity of the rules would be called into play. But the D.C. Circuit reached that issue and struck down the rules. The day of the panel’s decision was a difficult one. It was the only time in which I was in the presence of Bill Kennard when he seemed visibly upset and not the very even-keel person I had always seen. He wasn’t directing anything at me personally, but I had been the Commission’s lawyer who had unsuccessfully argued the case and had not been able to prevent what from an institutional perspective was a very bad result whereby an important set of rules had been invalidated, not in a rulemaking proceeding where all interested parties had a chance to participate, but in an adjudicatory proceeding. The elimination of the EEO rules in this manner blindsided, I think, the Chairman and regardless of how their demise might occur, whether via a rulemaking or an adjudication, the -146- end of the EEO rules was very disturbing to the Chairman’s friends in the minority community who were putting a lot of pressure on him to fight for these rules. It was uncomfortable watching him trying to deal with this decision. We tried to get the D.C. Circuit to grant rehearing and give the Lutheran Church its license, but base that action on free exercise grounds which in our view would have left for another day the broader issue of the facial validity of the rules. One or two judges on our petition for rehearing en banc appeared sympathetic to our position, but our petition failed. MR. SHELDON: And did you view Chairman Kennard as a chairman with a solid policy preference like some of the previous chairmen? MR. ARMSTRONG: My recollection is that he in particular wished to allow the lowpower radio stations – he wanted to introduce additional low-power stations. He thought this could be done without creating interference with established radio stations. And this was one area in which he was generally – he was not of a confrontational temperament – and I think that even people who didn’t necessarily share his political views liked him very much as a person. The one proceeding that I remember bringing out an edge in him, creating some difficulty in his relations with the established broadcast industry was this proceeding in which he was trying to increase the number of low-power radio stations. MR. SHELDON: Who followed Chairman Kennard? MR. ARMSTRONG: Chairman Kennard left when the Clinton administration ended and that’s when Commissioner Michael Powell, who had served as a Republican member of the Commission for several years, became the Chairman. That is also another time when an attorney who had once been a member of the Litigation Division became the General Counsel. This was Jane Mago who, as a member of the Litigation Division, had been my strong right arm in trying -147- to manage the Litigation Division. Jane served as the General Counsel for about two years. And then John Rogovin, who had come over from O’Melveny and was the Deputy General Counsel during Jane’s tenure, became the General Counsel when Jane became the head of another office at the Commission. MR. SHELDON: The Powell chairmanship – Powell was appointed at the beginning of the Bush term? MR. ARMSTRONG: Yes. MR. SHELDON: Was he still Commissioner when you left? MR. ARMSTRONG: No. He, Commissioner Powell left in the early part of the second Bush term, and he was succeeded by Chairman Martin. John Rogovin left also at this time and for a brief period Austin Schlick, who had been John’s Deputy, remained and served as the Acting General Counsel. Matthew Berry then served as Chairman Martin’s General Counsel. When the Obama administration arrived, Julius Genachowski became the Chairman and Austin Schlick returned as General Counsel and was in that position at the time I retired. MR. SHELDON: What are your thoughts on Chairmen Powell, Martin and Genachowski? MR. ARMSTRONG: Chairman Genachowski had been an attorney in the General Counsel’s office during the Reed Hundt Chairmanship, so I had known him before he became Chairman. Didn’t deal with him on a personal level after he returned as Chairman, but had enjoyed a friendly relationship with him during his earlier time at the Commission. Also didn’t have much direct contact with either Chairman Powell or Chairman Martin. The one meeting I had in the Chairman’s Office during their tenures occurred before the oral argument in the NextWave case which would subsequently be a very difficult and unhappy experience I had in -148- the D.C. Circuit. But on the afternoon before the argument, I got to come to Chairman Powell’s Office where he gave me essentially a pep talk. Chairman Martin and I had something in common in that we each graduated from the University of North Carolina at Chapel Hill and Harvard Law School. He also got a graduate degree from Duke, and that is something I don’t have. Because of our ties to North Carolina, we had something to talk about when we encountered each other. And those conversations were always pleasant, but I was not in his inner circle and didn’t deal with him on a business level. I mentioned earlier the problems at the staff level during the Sikes’s chairmanship when the Chairman and a Commissioner from his party, Commissioner Marshall, disagreed about whether to repeal the financial interest and syndication rules. A similar situation occurred between Chairman Powell and then Commissioner Martin in the proceeding on opening competition under the ’96 Telecommunication Act in the local exchange telephone market. MR. SHELDON: So, we’ve now discussed, by my count, at least twelve different Chairmen that you served under. Did you ever think about leaving the FCC during your time there, from the late 70’s up through when you left in 2011? MR. ARMSTRONG: We talked earlier about my promise to Chairman Wiley when I got my job to stay there only until January 1977. It turned out that I liked what I was doing. Didn’t have the financially motivated reason to seek a more lucrative paying position. Very much liked the people I was working with. Also had some personal reasons to stay. My mother died in Tennessee very suddenly of a heart attack in the summer of 1977, about two years into my time as Chief of the Litigation Division. My father had been diagnosed several years before my mother’s death with Parkinson’s Disease. He was still active when she died and remained so for about another eight years, thanks to the medicine. My brother was working in Utah during this -149- time. I don’t think either of us realized the problems our father would have when his Parkinson’s medicines would lose their effectiveness. But all along in the back of my mind was the thought that the day might come when my father would require a lot of attention during his declining years. He was 400 miles away and I thought it would be easier for me to wear two hats if I didn’t try to have a dramatic move on the job front. That intuition served me well because when our father did ultimately reach the point where he became bedridden for the last five years of his life, that required a lot of travel back and forth to Tennessee and it was just so much easier to juggle that, fit that into your work schedule when you were a Division Chief and you had a loyal staff you had worked with for a long time. I could take three-day weekends a lot easier and get away with it. So, I think it was the combination of all those things I’ve been talking about that just led me to stay there. MR. SHELDON: Did you ever get a sense that any of the Commissioners wanted you out so they could replace you with one of their own men? MR. ARMSTRONG: They were – I certainly would expect that, even though I was in a position that was protected, it was not a political position where a new Chairman had a right to put his person in the position. You can’t be naïve. With the exception of Chairman Wiley, who was the one Chairman that had personally placed me where I was, you have to know that every – I was fortunate enough to be in a position with enough responsibility that if an opportunity had come to any of the succeeding Chairmen, and their General Counsels to put a person that they knew on a close basis where I was, they, just as I’m sure Chairman Wiley was very glad that he had the opportunity to name someone to my position, I’m sure any of the members of both parties would have welcomed the chance to do so, if they could. But they obviously, they knew that this was not a political position, in the sense that they could view that as a right, and they -150- were always very supportive and very cordial. Now sometimes, obviously, you could work around me in that if you appointed someone to be the General Counsel or the Deputy General Counsel, who was personally close with you, I’m in a chain of command within the GC’s office. And how the chain of command works can very much be a function of how the General Counsel and the Deputy General Counsel want it to work. And so, if there was particularly sensitive litigation, from a policy perspective, I assumed, and usually I think I assumed correctly, that those were going to be cases probably where at the end of the day, the control of the decisions about how the case was to be handled on judicial review rested with my superior. MR. SHELDON: Did you ever feel that you were intentionally being kept out of the loop because of perceived policy differences? MR. ARMSTRONG: Well, obviously the proceeding during Chairman Ferris’s tenure concerning the renewal expectancy policy that we talked about earlier is one where I realized that the Chairman disagreed with my recommendation. I don’t remember that there was much occasion after the panel’s action on rehearing for anything further to happen on that issue. But if there had been, I certainly would not have expected to be welcomed at any high-level discussion of the renewal expectancy policy. And I expected there would be other sensitive matters where the Chairman’s inner circle would prefer to keep their counsel to themselves without inviting input from me. There were many other times in which the General Counsel, just as a matter of office routine, dealt with the Chairman without involving the staff. I mentioned the practice, when Diane Killory was the General Counsel under Chairman Patrick, of Diane frequently taking her staff with her to meetings in the Chairman’s Office to discuss agenda matters. For me at least, that was atypical. There were some meetings with Chairman Fowler and Chairman Quello where I was present. But the other Chairmen from both parties, they generally dealt with -151- their General Counsels who then would work directly with me if anything came from those meetings that pertained to my responsibilities. MR. SHELDON: Now, I understand that there came a time when there was some conflict between the FCC and with the Department of Justice on antitrust issues. MR. ARMSTRONG: Most of the disagreements with the Department of Justice with which I was involved came early on in my tenure. I’m not talking about a situation where, in the course of writing a brief in which the Justice Department were representing the United States which was also a respondent. We would have back and forth with our colleagues in the appellate division about how to write the brief, and whether or not we could write it in such a way that would persuade the department to support our position. I’m not talking about those bread and butter discussions which usually resulted in a solution that was satisfactory to both parties. I’m talking about the areas where there was a policy disagreement which had surfaced before the case ever was decided by the Commission and about which the Department felt strongly, and thus the disagreement carried over into the litigation. There were several of those disagreements. The one that occurred most recently, to my memory, was the Metro Broadcasting case. The Civil Rights Division under the first President Bush’s administration, was not supportive of the Commission’s minority ownership policy, and the Commission, with the permission of the Solicitor General’s Office, proceeded on its own after the Supreme Court took the case. Another major disagreement concerned the extent to which divestiture would be ordered in the newspaper/broadcast cross-ownership proceeding. Another one concerned the extent to which the Commission would restrain the pay cable industry in the interest of trying to ensure that the over-the-air broadcasting industry was able to obtain the programming rights to show very popular feature films and sports events. The so-called pay cable anti-siphoning rules, which -152- ultimately culminated in the Home Box Office decision. And then the proceeding that we talked about, I believe in one of the earlier sessions, in which the Commission was asked by some to use its powers under the Clayton Act to hold an evidentiary hearing looking towards a possible denial of the joint venture between Comsat and IBM to have a domestic satellite operation that could compete with AT&T. On those three – the one adjudicatory proceeding and the two rulemaking proceedings, the Department – and it was well known that the Department felt this way from the beginning – the Department had a position that was different from the position the Commission ultimately took. In the two rulemaking proceedings, the Respondent United States supported the Petitioner at the D.C. Circuit, and in the licensing case on the domestic satellite venture, the United States was the appellant. The en banc decision of the Court in that case was the United States v. FCC. MR. SHELDON: Did the FCC ever feel any pressure from the White House on any of these issues? MR. ARMSTRONG: We talked earlier about a case concerning the repeal of the financial interest and syndication rules. That highly publicized proceeding is the only one I know of, in which a Chairman of the Commission and his Chief of Staff were directly called to the White House for a meeting. The Hollywood Studios strongly supported those rules. During the first term of the Reagan administration, Chairman Fowler started a proceeding that would not conclude for a decade. There was a very strong recommended decision to repeal these rules, and that became a matter of public record. This recommended decision would later be used very effectively against us when we were before Judge Posner and the Seventh Circuit defending the Commission’s refusal to years later adopt the recommended decision. There is a likely explanation for the failure of the recommended decision to go anywhere during the remainder of -153- Chairman Fowler’s tenure. At the behest, no doubt, of the Motion Picture Association of America, and their lobbyist, Jack Valenti, President Reagan was asked to intervene personally – or at least, to express some interest in trying to get educated about it. But in any event, there was a meeting involving the President at the White House, which was attended by Chairman Fowler, I think, and his Chief of Staff. And the subject was the proceeding concerning the financial interest and syndication rules. That’s the only one I know of. Now, I have no doubt that the Chairman’s Office and the White House communicated on many, many other matters; but that’s the only one that – but that was the most high-profile one of which I am aware. MR. SHELDON: Now tell me about your experience with Congress. I understand you were called for questioning once. MR. ARMSTRONG: We talked earlier about Chairman Ferris’s decision on the RKO renewal applications. That decision became the subject of a D.C. Circuit case. The New York Station was one of the stations that the Commission initially sought to take away from RKO. The D.C. Circuit upheld the decision taking away Boston, but sent back New York and Los Angeles for further proceedings. During the further proceedings on the New York license, Congress passed the so-called Bradley Bill, Senator Bradley of New Jersey being the proponent. New Jersey did not have an operating commercial VHF television station. The RKO station that was the subject of the litigation concerned a VHF television station, Channel 9, licensed to New York City. At Senator Bradley’s behest, a statute was passed which, on its face, said only that if there is any VHF television station that is willing to relocate its station to a site – to a city in New Jersey, the Commission shall accept that offer and grant that station a license. Read literally, that statute allowed RKO, as the licensee of Channel 9 in New York City, in the middle of a proceeding contesting its right to continue as the licensee of Channel 9, to come to the -154- commission and say, we offer to change our license community to Secaucus, New Jersey. That will now become our city of license, instead of New York City. They could keep their transmitter on the World Trade – it was either the Empire State Building or the World Trade Center in New York. As an engineering matter, that transmitter would satisfy all of the engineering requirements which a television station in Secaucus, New Jersey, would be required to satisfy. So they didn’t have to move their transmitter. They had to change their city of license. And the benefit for RKO was that it cut off the head of the competing applicant, which was trying to become the licensee. So, not surprisingly, RKO sought to do that, and the competing applicant ultimately tried to challenge the Bradley Bill, before the D.C. Circuit and was not successful. But very shortly after it was known that RKO was going to attempt to avail itself of the new statute, there was an oversight hearing before the House Telecommunications Subcommittee chaired by Representative Tim Wirth – later Senator Wirth – from Colorado. Prior to this experience, I don’t think I ever went to an oversight hearing that concerned the relationship between the commission and Congress, because my concern was the relationship between the commission and the courts. But for some reason, on the morning of this particular hearing, either I had gotten to my office, or I was out on the sidewalk entering the building, and there were a group of people who were getting in the car to go up to the hill for the oversight hearing, and I was persuaded to join the group. It may very well be, in fairness to Chairman Fowler, that something was said to me about, we’d like you to go because we think there may be a question raised in this hearing this morning about RKO’s efforts to move to New Jersey and there will be some concern with the litigation. Memory’s hazy, but that may have happened. But in any event, I certainly didn’t think that much of it, and I was seated a number of rows back of the Chairman when he was testifying, and he got a question from Chairman Wirth – someone -155- had obviously bent his ear and had persuaded him that this really seemed strikingly unfair to interrupt an ongoing licensing proceeding and let RKO escape by the simple expedient of changing its studio license to New Jersey – Mr. Wirth’s question came in an accusatory tone of voice to Chairman Fowler. Chairman Fowler had a good answer, I think, in that he could say – Mr. Chairman I didn’t pass this statute; I’m simply administering a statute which the Congress passed. But in any event, Chairman Fowler didn’t want to answer the question and instead of turning to his Chief of Staff or his General Counsel, he said, Mr. Chairman, I think that my litigator is here, I think I’ll let him answer your question, so I had to go up from several rows back to the witness table. MR. SHELDON: Did you have to get sworn in? MR. ARMSTRONG: I don’t think Chairman Wirth asked me to be sworn in. I think he just was content to see if some poor soul in the room could give him a further background on the litigation and how it related to RKO’s attempt to rely on the Bradley Bill. I don’t recall that I was able to do anything to satisfy Chairman Wirth, but at least he mercifully let me go after about two or three minutes, stammering away. MR. SHELDON: What was a more intimidating experience, appearing before the D.C. Circuit or appearing before Congress? MR. ARMSTRONG: Oh, I would certainly say that it would have been that moment with Congress had I been premeditating about it, had I known about it the night before. If you compared my reaction to that anticipated event with my reaction to appearing before the D.C. Circuit, it would have been no contest because I rarely was really nervous in that I couldn’t eat or sleep when I would go to the D.C. Circuit. Most of the time I would know in advance when we had a hard case and what trouble to expect from the D.C. Circuit, and could chart a course for -156- better or worse. When I would really feel like I was blindsided at the argument and just really wasn’t as prepared as I wished I could have been, this of course happened right at the argument, and there weren’t too many of these situations. MR. SHELDON: Let’s talk for a little while about some of your appearances before the D.C. Circuit Court of Appeals. Are there any particularly memorable appearances that pop to the front of your mind? MR. ARMSTRONG: Well, there’ve been a lot of them. I didn’t have as many as John Ingle, whose career at the Commission almost paralleled mine. John did – he was ostensibly my deputy, but we divided up the work. He did most of the common carrier cases, and I did the broadcast and the cable cases. My most memorable experiences on the unhappy side usually occurred when an adverse opinion came out and not when the case was argued; the argument hadn’t prepared us for what was in the opinion. That certainly happened in the Home Box Office case, which was the pay cable case. And that certainly happened, I think, in the Daytona Beach licensing case that we talked about earlier. MR. SHELDON: What was the count that you were just about to reference? MR. ARMSTRONG: You know, I will probably have to double check that again. I think it was between 50 and 60. But I believe that’s what it was. I think it’s probably about 50 in the D.C. Circuit, maybe another 15 in other circuits. MR. SHELDON: Were there any arguments where you remember getting particularly good tongue lashings? MR. ARMSTRONG: The one that was really, really difficult to take, and it just goes to show how you sometimes can prepare as much as possible, and you still get thrown off stride at the argument, and you wonder if you had been able to handle a question better, you could have -157- avoided what happened. I will come in a minute to a case where what seemed a bad argument nevertheless had a happy ending. I will first give the example that did not. The NextWave case was a situation in which a radio licensee, who was paying for its license, had won it at an auction. They were paying for it on the installment plan. They did not meet one of their installment payments when it became due. There was a regulatory condition on the license that if the licensee didn’t fully and timely pay its installments, its license would automatically cancel. That happened to NextWave. There was vigorous litigation, first in the bankruptcy court, and in the Southern District of New York, and in the Second Circuit. And NextWave was trying to basically have the bankruptcy law trump the licensing law under the Communications Act. The Commission prevailed, or at least we thought we prevailed, in the Second Circuit. NextWave still had an opportunity, even if the bankruptcy law did not guarantee that they could keep their licenses, they still had an opportunity in a licensing proceeding at the Commission to argue for a waiver of the Commission’s automatic cancellation rule. If that was denied, they could have a licensing appeal, which exclusively had to go to the D.C. Circuit. When NextWave finally got an appeal before the D.C. Circuit, the case was set for argument in the early days of Michael Powell’s chairmanship and with a recent change of General Counsels, I was left with the oral argument. Never in my experience was I ever subjected to more pre-argument moot courts and other meetings in which I got input from private parties, attorneys from the Justice Department and my own agency. We were trying very hard to ensure that the bankruptcy code as a matter of substantive law was never intended to alter the Commission’s authority under the public interest standard of the Communications to enforce the automatic cancellation regulatory condition. Although its opinions could be read differently, the Second Circuit on our reading of its decisions had already accepted our position on the relationship between bankruptcy law and the -158- public interest radio licensing regime. Judge Tatel was on the panel, and it was obvious early on that he was not inclined to read the Second Circuit’s decisions as we did. And he also was sympathetic with NextWave’s argument that the Bankruptcy Code was dispositive in NextWave’s favor. He hit me near the beginning of my argument with a question about whether the Commission had taken a lien on NextWave’s licenses. With all of the preparation that had gone into that argument, I don’t recall that the existence of a lien ever came up, and I was not prepared to answer Judge Tatel’s question. I fumbled it badly. When the panel rejected our reading of what the Second Circuit had done and then went on to uphold NextWave’s argument under the Bankruptcy Code, I experienced one of my greatest disappointments because this was a case involving a lot of money, the issue was about as fundamental as a lawyer who had spent nearly his entire career working with the licensing regime under the Communications Act could imagine and under my understanding of what the Second Circuit intended in its concededly ambiguous decisions, this was a case where a substantive victory for our side in the Second Circuit was taken back. I have asked myself on more than one occasion whether a better performance by me in response to Judge Tatel’s question about the lien might have improved our chance to persuade the D.C. Circuit with our threshold argument that NextWave’s substantive arguments under the Bankruptcy Code had already been adjudicated and rejected by the Second Circuit. There was a case on the syndicated exclusivity rules. I have forgotten exactly what the facts were, United Video was the petitioner – I will stop trying to recite all the facts, but I remember at the oral argument, Judge Edwards in particular, he was on the panel, and he was – I didn’t always experience this so-called Judge Edwards treatment, but this is one time where I did. He seemed to be very, very – his tone of voice was very difficult, sort of incredulous. He -159- didn’t appear to accept the Commission’s position I was arguing, and so we were almost certain at the end of the argument that this didn’t go well. This was one of those cases where there was a – stay motion was pending at the time of the oral argument on the merits, and had not been decided. I believe it was the next day after the argument that we got a call late in the afternoon advising that the Court had issued a one-line order denying the Motion for Stay. And the attorney in my division, Grey Pash, who worked on the case with me, we both looked at each other, wondering how this could possibly be given what happened that day before at the argument. If they denied the stay motion, that has to suggest that our position on the merits is going to be upheld. And a couple of months later, we got the opinion on the merits, and we did win with a unanimous panel decision. MR. SHELDON: Were there any cases where you felt maybe the oral argument may have turned the tide and added something beyond just the briefing? MR. ARMSTRONG: Very rarely, and I would – I don’t specifically now remember any case where I honestly think that it may have turned the tide, I think we might at some times, if we were able to build some credibility with the court, or build on an existing relationship of credibility with the court. There may have been times when this was helpful in getting the court to take our argument seriously, and perhaps no going down a path that it might otherwise have followed. But I would be hard pressed to think of any case where I really felt like we were losing going in, and we were winning coming out. MR. SHELDON: During your 30 plus years at the FCC, who on the D.C. Circuit, what judges had the reputation for being the toughest questioners? MR. ARMSTRONG: I mentioned Judge Edwards a minute ago. I think he certainly had a reputation for being very, very difficult. Judge Silberman, on the more conservative side had -160- that reputation. Judge Wald could be tough, but her temperament was different and she had a less confrontational tone than was sometimes displayed by some others. Her questions were very perceptive and very fair. Same with Judge, now Justice, Ginsburg. I should also add, even though he didn’t do it to me perhaps for personal reasons, my personal friend from Carolina, Judge Sentelle, could be very tough on counsel when he was not sympathetic with counsel’s position. MR. SHELDON: What was the FCC’s view of the D.C. Circuit over the years, as friend or foe? MR. ARMSTRONG: Well they were, we certainly respected them because of their interest in and knowledge of the subject matter of our litigation. You knew that if you were in the D.C. Circuit, you were at least going to be before judges who cared about your work and who were prepared for the argument. Occasionally, I think it’s fair to say that if you got a Circuit other than the D.C. Circuit, you sometimes would feel that you are swimming upstream when you’re having a very difficult time possibly because the judges just don’t quite have the background that is helpful in enabling them to appreciate what’s going on. You never felt that way in the D.C. Circuit. My first exposure to the D.C. Circuit came at a time in which there were some very contentious policy issues on the table. In the ‘70s, we saw the concern at the D.C. Circuit, or at least some members of the D.C. Circuit, Chief Judge Bazelon, in particular, that the Commission was allowing too much concentration of ownership, and the Commission needed to become more restrictive in that area in the interest of diversifying the ownership of stations. There was concern that surfaced in the Home Box Office case that the Commission’s procedures were too susceptible to lobbying outside the record of rulemaking proceedings and ending up in results that were probably too sympathetic to the industry that was doing the -161- lobbying. There was the disagreement in particular with Judge McGowan from Chicago on whether or not the Commission had a responsibility to regulate entertainment format changes. So you had a number of these big proceedings in which the D.C. Circuit seemed to be pulling in one direction and the Commission in another. Oh then there was also the Execunet proceeding in which – I wasn’t directly involved in this one because it was common carrier, but that was a very contentious proceeding concerning the introduction of competition into the long-distance telephone business coming principally from MCI, which was attempting to become a player competing with AT&T. The Commission believed that under the previous orders that MCI was relying upon, the Commission had not allowed the result which MCI aggressively came to seek in the ExuNet litigation. Judge Wright, in particular, had some very strong language directed at the Commission for resisting MCI’s efforts. He was joined by, I remember a panel of judges across the ideological divide. We had a string of these difficult decisions, and when we finally did get a favorable decision from the Supreme Court in ’78 in the newspaper/broadcast crossownership case on the divestiture issue, I remember the satisfaction we got in finally prevailing after a string of defeats at the D.C. Circuit. The longer I was at the Commission I could at least begin to see the arguments for the other side better than I did in the heat of battle, for example, in the Home Box Office case. MR. SHELDON: Now, during your career at the FCC, you worked with and mentored a number of attorneys who went on to have illustrious careers themselves. Who do you view as kind of some of the keenest minds that you worked with? MR. ARMSTRONG: Well, a great number of the people that were in my Division, you know, stayed for a long time, if not the duration, in my Division, so they continued to impress me with their work at the Commission. I had at least three people whom I tutored and who -162- worked under me, who later became my boss as the General Counsel of the Commission. One of those three was Stephen Sharp, and he later became – he was the Commissioner that had the short, one-year term on the Commission that I mentioned earlier. In seeing my subordinates do well on the political chain, this development was obviously a source of pride. The other two, I’ve mentioned Steve Sharp, the other two were Jane Mago, of whom I’m enormously proud, she later went on to the – she is now the General Counsel for the National Association of Broadcasters. Very proud of her because she was enormously valuable to me. Jack Smith was the other one who had been under me and later became my boss. He later went on to a very distinguished career at the Federal Deposit Insurance Corporation. He’s retired from that position, and I haven’t talked to him in about the last year or so, but I think he’s been very active in trying to curb some of the international financial transactions that arouse concern. Very proud of him. I also associated in the General Counsel’s Office with other outstanding litigators, who were not my subordinates. Chris Wright is one good example. MR. SHELDON: Who do you think you learned the most from, and who would you want to be compared to in your own legal career? MR. ARMSTRONG: We talked in the earlier sessions about how I, having been as green as I was behind the ears when I first found myself in my position, I was more than happy to be mentored by some members of the private bar. The two that I really remember immediately would be Roger Wollenberg, the late Roger Wollenberg, who was at Wilmer, and the late Ernie Jennes, who was at Covington. Ernie Jennes was my mentor in trying to defend the Commission’s limited divestiture rules first at the D.C. Circuit and then at the Supreme Court, after the D.C. Circuit ordered divestiture across the board. The Supreme Court argument was in January, and Ernie was, I believe, at a meeting of one of his clients in Hawaii, so he wasn’t at the -163- argument. Ultimately, the decision came down, and our position was upheld in the opinion, which made both Ernie and me very happy. But I was also happy after the argument that Ernie had not been there because I didn’t think I had spent enough time at the argument on the points that I knew Ernie believed required the greatest attention. Had he been there, I thought I probably would have gotten some criticism from him after that argument. I worked on many cases, up to and including the Metro case in the Supreme Court with Roger Wollenberg. The attorneys at Wilmer were also terrific attorneys, Tim Dyk, who’s now on the Federal Circuit, Joel Rosenbloom taught me a great deal about litigating FCC cases. I know that I’m going to leave somebody out once I start trying to do this exercise, but I certainly think of them. I had a very excellent relationship with and thought very highly of Larry Wallace in the Solicitor General’s office. He was our point person on FCC matters in the Supreme Court, and he would frequently give me advice from the valuable perspective of someone who argued as much as he did in the Supreme Court. MR. SHELDON: When was your last argument before the D.C. Circuit? MR. ARMSTRONG: I think it was in early – let’s see, I retired at the end of 2010. I think my last argument was nearly two years before that. It was spring of 2009, I believe. And it was, if I remember correctly, it was a relatively low-profile case involving a radio station in Arizona. I don’t even specifically remember the facts, but it was certainly not one of my higher profile cases I was involved with. MR. SHELDON: Did you know, did you have any inkling at the time that it would be your last? MR. ARMSTRONG: No, I did not, I did not know that it would be the last one that I would have there, in my position as Chief of the Division. I knew that there didn’t seem – in the -164- first place, the sheer volume of cases that we had been getting in recent years was not as great, so there were not as many from which to pick. I had always been somewhat reluctant to take a case that somebody else had briefed, so if I had an attorney that I was supervising on the brief, I had a presumption that I would not try to take the case away from that attorney if the attorney wanted to argue, as they usually did. The ones that would have been candidates for somebody else to argue, I think, in my later years at the Commission, we began to have other people in the front office of the General Counsel’s Office who took an interest in litigation, and frequently liked to argue those cases, so figured that there’s an increasing likelihood that if it’s a case that might be a candidate to be taken away from the attorney who is the front-line draftsman, odds are probably pretty good that they go to somebody above me on the chain. I certainly had the sense that I wasn’t going to be arguing probably as many cases as I once did. But I didn’t absolutely know at the time at that last argument, which I’m happy to say ultimately resulted in a victory, at least I went out on a winning note. Never did bother to count up all the other cases to see how many of them were wins and how many of them were loses. MR. SHELDON: Well, on that winning note, I’ll conclude our session for the day. Thank you very much for joining me. MR. ARMSTRONG: Yes, sir. A-1 INDEX Oral History of Daniel “Mack” Armstrong ABC television, 90, 138 Abingdon, Virginia, 121–22 African Americans, 3, 4–5 Brooklyn U.S. Attorney’s office, 44 civil rights movement, 9–12 See also minorities American Security Council Foundation, 107–8, 111–12, 113, 114, 117 American Tobacco Company, 28 Anderson, Jack, 37–38 anti-siphoning rules, 102, 151–52 See also Home Box Office antitrust, 38, 40, 101, 151–52 antiwar demonstrations, 12 FBI agent confrontations, 58, 59 injunctions, 40–41 Armstrong, Daniel (“Mack”) — Personal and athletics, 2–3, 4 birthdate, 1, 2 birthplace, 1 boyhood, 2–5 close family life, 3–4, 20–21 elementary school, 2, 4 pastimes, 4 prep school, 2–3, 5–6, 7, 20 small-town life, 1, 3–4, 5, 7, 15, 26–27 summers in North Carolina, 2, 4, 5 brother, 1, 20, 148–49 career plan, 16–17, 18–19 debating, 6, 7–9, 10, 11, 12, 16, 17 family background, 3–4, 7 family obligations, 148–49 father, 1, 7, 18, 20, 21, 29 background and education, 1 church attendance, 3–4 family department store, 1, 7 golf, 4 Parkinson’s disease, 148, 149 World War II service, 2 Harvard Law School, 12–15, 17, 19–26, 28–29, 40, 148 academic challenge, 21–22 choice factors, 18 A-2 classes, 22–23 draft deferments, 14, 15 FCC seminar, 29 first-year pressures, 20–21, 24–25 friendships, 21, 25 law firm interviews, 25–26, 45 moot court team, 28–30 Republican clubs, 13, 21 second-year exam grades, 28 third year, 28–29 women students, 34 interest in law, 6 law school applications, 17–18 maternal grandparents, 1–2, 4, 5, 6, 7 McCallie School, 2–3, 5–6, 7, 20 mother, 1, 7, 18, 20, 21 death, 148 North Carolina family, 1–2, 3, 6 Navy JAG (Judge Advocate General) commission, 16, 19–20, 30, 37, 43 training, 31–34 Phi Beta Kappa, 17 political conservatism, 12, 13, 134 religion, 3–4 Republican politics, 13, 16, 21, 44, 45–46, 134–35 and southern race relations, 3, 4–5, 9–12 temperament, 11–12, 22 uncles, 6, 7 University of North Carolina, 2–3, 6–8, 148 activities, 6, 7–9, 10, 16, 26 American history major, 6, 16, 17 choice factors, 7 debate team, 6, 7–9, 10, 11, 12, 16, 17 honors program, 7, 8, 17 Morehouse Scholarship, 2–3, 7 and Vietnam War, 12–16, 14, 15, 28 draft deferments, 14–16 naval commission, 16, 19–20, 30, 31–34, 37 Armstrong, Daniel (“Mack”) — Professional and appellate litigation, 75–76, 93–94 bar exam, 14–16, 19 Chadbourne and Parke summer associate, 16, 19, 26–28, 30, 44 duties and work environment, 27–28 Communications Bar Association award, 10 and criminal law, 32, 39–40 Federal Bureau of Investigation, 9, 30, 40, 46–72, 93 departure from, 64–65, 70, 73 A-3 and Gray’s confirmation hearings, 68–69, 70 and Gray’s last day, 63–64 duties as Gray staff assistant, 47–48, 49–50, 60, 61, 63 interactions with Felt, 60–67 opinion of Gray, 42, 47–49 regrets, 71–72 and Watergate, 53–54, 57–58, 68–69 Federal Communications Commission, 29, 30, 73–161 Administrative Law Division, 83, 88–98, 99 cases, 90–92, 93, 94, 99 assessment of chairmen, 74, 126–48, 149, 150–51 duration of service, 148–49, 163 hiring interviews, 72, 73–74 Litigation Division chief, 83, 92–98, 99, 101–25, 126–61 case preparation, 113–14, 119, 155–56, 158 and congressional oversight hearing, 153–55 and D.C. Circuit appearances, 155–58, 160–61 first major defeat, 86 last argument, 163–64 preparation for argument, 111–18, 156–57 unhappy experiences, 147–48, 157–59 division of work, 156 and Fourth Circuit litigation, 119–23 job responsibilities, 99–100, 104, 105 lawyer colleagues, 161–62 as nonpolitical position, 149–50 and policy differences, 150–51 private bar relationship, 111–13, 115–17, 121–22 mentors, 162–63 significant cases, 97, 102, 103–19 Litigation Division staff attorney, 75–87, 88, 94 opinion of Felt, 60–67 retirement, 163 opinion of Nixon, 44–46 prosecutorial background, 73 trial work, 20, 30–31, 36, 74–75 U.S. Assistant Attorney General for the Civil Division, personal assistant, 35–40, 42–43, 46, 48–49, 50, 73 U.S. Attorney’s Office for the Eastern District of New York (Brooklyn), Assistant U.S. Attorney, 20, 30–31, 33, 35, 36, 37, 39, 40, 43–44, 46, 47, 76 and Watergate, 51, 52, 53–63, 67–70 FBI 302 files, 68–69 as information conduit, 57–58, 72n luncheon with Gray, 54–55, 57, 58, 59 personal suspicions, 53 Army Corps of Engineers, 36 A-4 AT&T, 105, 116, 152, 161 Attorney General. See U.S. Attorney General Bankruptcy Code, 157–58 bar exam, 14–16, 19 Barrett, Andrew, 139 Bazelon, David L., 85, 97, 160 Beard, Dita, 37–38, 39, 42 Bernstein, Carl, 52 Berry, Matthew, 147 Bork, Robert, 136 Boston RKO comparative renewal case, 128 Bradley, Bill, 153–54, 155 Bradley bill, 153–54 broadcast industry deregulation advocates, 131, 143, 144 entertainment format change, 84, 105–7, 161 facilities ownership, 84 Fairness Doctrine, 107–8, 111–12, 113, 117, 132–33, 136–37 family viewing hour, 94 and FCC chairmen, 143, 146 financial interest rule, 91–92, 138–39, 141, 148, 152–53 indecency cases, 94–98, 127, 136, 137 Seven Dirty Words Order, 97 license payment default, 157–58 license renewal cases, 108–11, 117, 118, 127–28, 130, 150, 153–55, 156 license transfer to corporations, 135–36 low-power radio stations, 146 minority and female ownership, 87, 134, 136, 144, 151, 163 minority employment, 84, 108–9, 118, 145–46 newspaper cross-ownership and divestiture, 97, 100, 102, 103–4, 109, 110, 111, 112, 121, 127, 151, 161 pressure on FCC, 128–29, 160–61 Prime Time Access Rule, 90–92, 93, 94, 99, 138 reduced First Amendment protection, 136–37 relaxed ownership rules advocates, 144 syndication rule, 91–92, 138–41, 148, 152–53, 158–59 VHF television, 153–54 See also cable television; network television Brooklyn U.S. Attorney’s Office. See U.S. Attorney’s Office for the Eastern District of New York Burch, Dean, 73, 126, 131 Burger, Warren, 84 Bush, George H. W., 138, 147, 151 Byrd, Robert, 68, 69, 70 Byse, Clark, 23 A-5 Cable Act (1992), 142 cable television deregulation, 131, 143 movie and sports events program restriction, 84, 101, 121, 122–23, 124, 151–52, 156 utility pole rates, 89 Canton, North Carolina, 9 Carlin, George, 94–95, 96 Seven Dirty Words challenge, 97–98 Carter, Jimmy, 100, 126 CB radio. See citizens band radio CBS network, 90, 107–8, 111–12, 138 cellular telephones, 132 censorship, 137 See also indecency issues Central Intelligence Agency, 52, 54, 55, 58, 59 Chadbourne and Parke, 16, 19, 20, 24, 26–28, 30, 44 major clients, 28 Channel 9 (VHF television station), 153–54 Chapel Hill. See University of North Carolina Chappaquiddick incident, 56 Chicago, 84, 106 children’s television programming, 94, 124–25 CIA. See Central Intelligence Agency citizens band radio (CB radio), 73–74, 79–80, 89 civil rights, 9–12, 151 Civil War, 3 classical music stations, 84, 106 Clayton Act (1914), 105, 115, 152 Clinton, Bill, 141, 142, 145, 146 Committee to Re-elect the President, 53–54, 59–60 Communications Act (1934), 29, 81, 109 bankruptcy law vs. licensing law, 157, 158 public interest standard, 84, 106 Section 315 (Fairness Doctrine), 133 Section 402, 100–101 Section 402(b), 101–2 unauthorized license transfers, 135–36 Communications Act (1996), 142 Communications Bar Association, 10 comparative license renewal cases, 109–11, 117, 127–28, 130, 156 Comsat-IBM domestic satellite service, 105, 115–17, 121–22, 152 Congress, U.S., 153–55 See also Senate Judiciary committee corporate licenses, 135–36 court-martial, 31, 32 A-6 Covington & Burling, 112 criminal law, 32, 39–40 Dahlberg, Kenneth, 59–60 Daytona Beach (Fla.) comparative license renewal case, 109–11, 117, 127–28, 130, 156 D.C. Circuit. See U.S. Court of Appeals for the District of Columbia Circuit Dean, John, 43, 50, 51, 52–53, 63, 67, 68, 69, 70 Deep Throat. See Felt, Mark Democratic National Convention (1972), 42 Democratic Party, 6, 44 FCC appointees, 128, 130, 133–34, 138, 139, 141, 142, 143, 144 Diem. See Ngo Dinh Diem discrimination. See civil rights; employment discrimination District of Columbia. See Washington, D.C.; U.S. Court of Appeals for the District of Columbia Circuit domestic intelligence, 49, 71 domestic satellite joint entry case, 105, 115–17, 121–22, 152 Dyk, Timothy, 163 Easterbrook, Frank H., 140 Eastland, James, 37, 70 Edwards, Harry T., 158–59 Ehrlichman, John, 50, 52, 53, 56, 72n Ellsberg, Daniel, 71 employment discrimination, 84, 108–9, 118, 145–46 pre-designation discovery, 109 en banc review, 108, 110–11, 114, 116–17, 118–19, 124, 125, 128, 129, 152 environmental law, 30 Environmental Protection Agency, 64 Equal Employment Opportunity Commission, 118, 145–46 Ervin, Sam, 70 evidentiary hearing, 116, 117, 118 ExecuNet litigation, 116, 161 ex parte contacts, 123, 124, 129 Fairness Doctrine, 107–8, 111–12, 113, 117, 132–33, 136–37 repeal, 133, 136 family television viewing, 94 FBI. See Federal Bureau of Investigation FBI Academy (Quantico, Va.), 48, 49 FCC. See Federal Communications Commission Federal Bureau of Investigation, 9, 30, 39, 46–65, 71–72, 93 brick agents, 46–47, 51, 54–55, 57, 58, 59, 62 D.C. field office head transfer, 58 and Felt, 51, 52, 58, 60–63, 64, 65–67 Gray as acting director, 39, 40, 47–49, 50, 58 A-7 Gray confirmation hearings, 67 Gray resignation, 51, 63–64 and Nixon White House, 43, 50, 51, 52–53, 56, 63, 67, 68, 69, 72n offices in Main Justice building, 50 Watergate investigation, 51, 52–53, 54–55, 57, 58–59, 63, 67, 68–69, 71 302 files, 68 Federal Communications Commission, 9, 29, 30, 42, 65, 72, 73–161 agenda review process, 89 appellate work, 73–74, 76–77, 88, 100 broadcast industry pressure, 128–29, 160–61 chairman-commissioner interaction, 77–79, 136, 148 chairmen, 92–93, 94, 96, 120–21, 126–48, 150–51 and circuit lottery, 139–40 commissioner reduction from seven to five, 133–34 commissioner term of office, 79 Common Carrier Bureau, 105 Communications Act Section 402(b) cases, 81–82 D.C. Circuit relations, 83–88, 95, 97, 98, 106, 160–61 deregulation advocates, 132, 139, 143, 144 division on comparative license renewal, 127–28 enforcement action, 79–80 and ex parte contacts, 123–24, 129 Fairness Doctrine, 107–8, 132–33 repeal, 133, 136 Field Operations Bureau, 77, 79–80 General Counsel, 73, 133, 137, 146–47, 150–51, 162 General Counsel’s Office, 100, 114, 129, 144, 150, 162, 164 and indecency issues, 94–98, 136, 137 Litigation Division, 75–87, 88, 89, 92–98, 97, 99, 101–25, 126–61 overall structure, 77–79 and political pressure, 103, 152–53 Prime Time Access Rule, 90–92, 93, 94, 99, 124–25, 138 public interest standard, 157 Federal Deposit Insurance Corporation, 162 Federal Judicial Center, circuit lottery, 139–40 Federal Reporter, 9 Felt, Mark (Deep Throat) Armstrong assessment of, 60–67 and domestic break-ins indictment, 71 and FBI, 51, 52, 58, 60–63, 64, 65–67 revealed as Deep Throat, 51, 57, 61, 62, 65, 66, 72n Ferris, Charles, 100, 106, 126–27, 128, 129–32, 136, 143–44, 150 as activist FCC chairman, 131, 153 financial interest rule, 91–92, 138–39, 141, 148, 152–53 White House repeal recommendation, 152–53 See also syndication rule A-8 Finch, Robert, 30 First Amendment, 107, 136–37 Folger Shakespeare Library, 8 Ford, Gerald, 132 Fowler, Mark S., 102, 131–37, 138, 143, 150 financial interest/syndication rules repeal effort, 152–53 RKO license renewal hearing, 154–55 Fried, Charlie, 22–23 Genachowski, Julius, 147 Georgia, 122 Ginsburg, Ruth Bader, 160 Gray, L. Patrick, III FBI acting director, 39, 46, 47–49, 50, 60–62, 66 destruction of documents, 51, 54, 55, 56, 63, 64, 70, 71 lunches in office dining room, 60–61 resignation, 51, 63–64, 70, 71 and Watergate, 51–56, 57, 58, 62–63, 66, 67, 68–69 FBI director confirmation hearings, 53, 67–69 and Felt as Deep Throat revelation, 57, 65 need-to-know operation, 49, 51 posthumous book publication, 57–58 U.S. Assistant Attorney General, 30, 35, 36–37, 40–43 Griswold, Erwin, 25 Gulf of Tonkin incident, 13 Hardison, O. B., 8 Hart, Philip, 37, 70 Harvard Law School, 12–15, 17, 18, 19, 20–26, 28–30, 40, 148 classes and atmosphere, 22–23 competitive environment, 24–25 five end-of-the-year exams, 24–25 law firm interviews, 25–26, 45 moot court, 28–30 Republican club, 13, 21, 44 Socratic method, 19, 23 and Vietnam War, 12–13, 28 draft deferments, 14, 15 women students, 34, 35 Hastie, William, 120, 121 HBO. See Home Box Office Health, Education, and Welfare Department, U.S., 30, 35 Herwig, Barbara, 35, 36–37, 48–49, 50, 51, 60, 68–69, 71 Hobbs Act (1946), 81, 100, 101 Holland, Max, 66, 67 Leak: Why Mark Felt Became Deep Throat, 72n A-9 Hollywood studios, 92, 123, 138–39, 140, 152, 153 Home Box Office, 84, 86, 97, 102, 104, 120–25, 151–52, 156, 160–61 Hoover, J. Edgar, 39, 49, 50, 60, 61–62, 67 House Telecommunications Subcommittee, 154–55 Hruska, Janet, 50 Hruska, Roman, 50 Humphrey, Hubert, 42 Hundt, Reed, 142, 143, 144–45, 147 Hunt, Howard, 39, 56, 69, 70 IBM-Comsat domestic satellite service, 105, 115–17, 121–22, 152 indecency issue, 85, 94–98, 127, 136, 137 Seven Dirty Words challenge, 97–98 Indonesia, 32, 33 Ingle, John, 104, 156 ITT, 37–38, 39 antitrust settlement, 38, 40 Jacobs, Barbara, 29, 34 Jaffe, Louis L., 29 Japan, 33 Jennes, Ernie, 112, 162–63 Johnson, Lyndon B., 13 Justice Department, U.S., 29, 40, 71, 97 Civil Rights Division, 151 and FCC positions, 100, 101–4, 105, 106–7, 113, 121, 151–52 and White House policy directives, 40, 41–43 See also U.S. Assistant Attorney General for the Civil Division Kennard, William E., 144–46 Kennedy, Edward M., 37, 56, 70 Kennedy, John F., 12, 56 assassination, 13, 66 Killory, Diane, 150 Kimelman, Henry, 72n Kingsport,Tennessee, 1 Kinley, David, 29, 30, 35, 36–37, 48–49, 51, 60, 68–69, 71 Kleindienst, Richard, 37, 38 Knoxville, Tennessee, 7 Kopp, Bob, 40, 41 law firms, summer associate interviews, 26 Law of the Sea, 32–34 Law School Admissions Test (LSAT), 17, 18 Lebanon Valley radio station application appeal, 80–83, 85–87 Lee, Robert, 131, 132 A-10 Leventhal, Harold, 85, 97, 98, 111 Lichtenstein, Chuck, 72, 126 Liddy, Gordon, 39, 56 Los Angeles RKO comparative renewal case, 130, 153 LSAT (Law School Admissions Test), 17, 18 Lutheran Church case, 145–46 MacKinnon, George, 124–25 Mago, Jane, 146–47, 162 Malacca, Strait of, 32, 43 Malaysia, 32, 33 Marino, Joe, 75, 80, 81–82, 83, 88, 92, 94–95, 97 Marshall, Sherrie P., 139, 148 Martha Washington Inn, 122 Martin, Kevin, 147, 148 Mary Baldwin College, 1 McCallie School, 2–3, 5–6, 7, 20 McGovern, George, 72n McGowan, Carl E., 84, 106, 161 MCI, 116, 161 Metro Broadcasting, 125, 151, 163 Miami, Florida, 42, 43, 60 military law, 31–32 minorities broadcast station employment, 84, 108–9, 118, 145–46 broadcast station ownership, 87, 134, 136, 144, 151, 163 See also African Americans Mitchell, John, 37 moot courts, 28–30, 113, 114 Morehouse Scholarship, 2–3, 7 Morrison, Alan, 22 Motion Picture Association of America, 91–92, 138, 139, 153 movies, 123 See also Hollywood Studios Mt. Mansfield case, 90–91 National Association of Broadcasters convention, 123–24 general counsel, 162 national defense, 107–8 National Environment Policy Act (NEPA), 36 National Security Agency, 49, 53 Naval Indoctrination School, 31 Naval Justice School, 31–32, 33 Navy, U.S., JAG (Judge Advocate General), 16, 19–20, 30, 31–34, 37, 43 NBC network, 90, 138 A-11 Neaher, Edward, 20 network television pay-cable competition, 84, 122–23, 131, 151–52 prime time rules, 90–92, 93, 94, 99, 124, 138 reduced dominance, 138 rerun and syndication rules, 91–92, 138–41, 148, 152–53, 158–59 New Hampshire Attorney General, 23 New Jersey, 153–55 Newport, Rhode Island, 16, 19–20, 31, 33 newspaper/broadcast cross-ownership and divestiture, 97, 100, 102, 103–4, 111, 112, 121, 127 divestiture extent, 109, 110, 151, 161–62 New York, 18, 20, bar exam, 15, 16, 19 RKO comparative renewal case, 130, 153–54 summer associate position, 16, 19, 20, 24, 26–28, 36, 44 See also U.S. Attorney’s Office for the Eastern District of New York New York Times, 19, 20 NextWave case, 147–48, 157–58 Ngo Dinh Diem, 12, 56 Ngo Dinh Nhu, 12, 56 Nhu, Madame, 12 Nixon, Richard M., 37, 38, 40–45, 134 D.C. Court of Appeals appointees, 85, 86 and FBI, 43, 50, 51, 52–53, 56, 63, 67, 68, 69, 72n Justice Department policy directives, 40, 41–43 1968 election, 30, 42, 45 1972 re-election campaign, 37–39, 42–43, 53–54, 59–60 tapes, 52 See also Watergate Nixon, Mudge, Rose, Guthrie and Alexander, 45 North Carolina, 1–2, 3, 6, 7, 8–9, 148 race relations, 5, 10–12 See also University of North Carolina North Carolina Utilities Commission, 104–5 North Korea, 32 Obama, Barack, 147 Office of the Counsel to the President, 42–43, 69 Oswald, Lee Harvey, 66 Pacifica case, 85, 96–98, 127 Judge Leventhal dissent, 97, 98 Parker, Kellis, 10–12 Pash, Grey, 159 Patrick, Dennis, 133, 137–38, 150 A-12 pay cable. See cable television Pearl Harbor attack (1941), 1 Pettit, Jack, 88 Posner, Richard, 92, 140, 141, 152 Powell, Michael, 144, 146, 147–48, 157 pre-designation discovery, 109 Presbyterian Church, 3–4, 4 President, U.S. See White House; specific presidents Presidential election of 1968, 30, 42, 45 Presidential election of 1972, 37–38, 39, 42–43, 72n Committee to Re-elect the President, 53–54, 59–60 Prime Time Access Rule, 90–92, 93, 99, 138 children’s programming exemptions, 94, 124–25 Princeton University, 2, 7 public interest groups, 118, 143, 144 public interest standard, 157 Pueblo incident (1969), 32 Quantico, Virginia, 48 Quello, James, 128, 139, 141–42, 143, 144, 150 radio stations. See broadcast industry Randolph, Ray, 50 Reagan, Ronald, 107, 131, 132, 152, 153 Red Lion decision, 136–37 Reeves, Judge fifth circuit, 121, 122 Republican National Committee, 38, 43 Republican National Convention (1972), site choice, 38, 42–43 Republican Party, 1, 6, 16, 21, 43, 44, 45–46 FCC appointees, 128, 130, 131, 133, 134–35, 136, 138, 139, 142, 144, 147 Harvard organizations, 13, 21, 44 Rhodes Scholars, 2 Ripon Society, 13 RKO license renewal, 130, 153–55 Robinson, Glen, 95–96 Rogersville, Tennessee, 1, 2, 3, 4, 5, 7, 26 Rogovin, John, 147 Rosenbloom, David, 22 Rosenbloom, Joel, 163 Rothstein, Barbara Jacobs, 29, 34 Ruckelshaus, William, 64 Sachs, Steve, 63, 71 Sanders, Carl, 122 San Diego, California, 38, 42 Sans Souci restaurant, 54, 55, 57, 58 A-13 Saylor, David, 106, 107, 131 Schlick, Austin, 147 school desegregation, 3, 5 Secaucus, New Jersey, 154 segregation, 4–5 Senate Judiciary Committee, 37, 68, 69, 70 Sentelle, David B., 8–9, 10, 160 Sharp, Stephen, 162 Sikes, Alfred, 138, 139, 140, 148 Silberman, Laurence, 159–60 Singapore, 32, 33 Sirica, John, 67–68 Smith, Jack, 162 Socratic method, 19, 23 Solicitor General. See U.S. Solicitor General Souter, David, 22, 23–24, 29 South Bend, Indiana, 139 South Vietnam, 12, 13, 56 See also Vietnam War Special Prosecutor’s Office, 71 Sperry Rand, 28 sports broadcasts, 84 Steele case, 134 Stephanopoulos, George, 57 Sternstein, Susan, 79 Sunshine Act, 78, 79, 96 Supreme Court, U.S. chief justice, 33 and FCC litigation, 100, 101, 106 indecency case, 95, 96, 97–98 justices, 23 minority ownership case, 125, 151, 163 newspaper/broadcast cross-ownership divestiture ruling , 100, 109, 110, 111, 127, 128, 161–62 radio program format change case, 106, 107 station ownership case, 84 warrantless wiretaps ruling, 49 syndication rule, 91–92, 138–41, 148, 158–59 White House repeal recommendation, 152–53 See also financial interest rule Tamm, Edward A., 82, 85, 97, 124 Tarboro, North Carolina, 2, 5, 10 Tatel, David S., 158 telephones cellular, 132 A-14 common carrier cases, 104–5 equipment registration rules, 104, 105, 119, 120 long-distance market competition, 116, 161 open competition, 142, 148 television. See broadcast industry; cable television; network television Tennessee, 1, 2, 3, 6, 7, 8, 46, 148, 149 bar exam, 15 Tennessee Tombigbee waterway project, 36 This Week on ABC (TV program), 57 Tribe, Laurence, 24 Tunney, John, 70 Tuttle, Elbert, 120, 121, 122 TWA, 27 Uniform Code of Military Justice, 31 United Video, 158–59 University of North Carolina (Chapel Hill), 2–3, 6–8, 17–18, 26, 148 black students, 10–12 civil rights movement, 9–10, 12 debate team, 6, 7–9, 10, 11, 12, 16, 17 liberal reputation, 12 Morehouse Scholarship, 2–3, 7 party school reputation, 7 University of Tennessee, 1 University of Virginia Law School, 17, 18, 95 U.S. Assistant Attorney General for the Civil Division, 30, 31, 35–37, 40–43, 46, 48–49, 50, 71, 73, 76 U.S. Attorney General, 37, 49, 53 U.S. Attorney’s Office for the Eastern District of New York, 20, 30–31, 33, 35, 36, 37, 46, 47, 93 And political parties, 43–44 U.S. Attorney’s Office for the Southern District of New York, 157 U.S. Congress. See Congress, U.S. U.S. Court of Appeals for the District of Columbia Circuit, 9, 101, 105, 107, 145, 152 Armstrong’s last argument before, 163–64 and broadcast employment discrimination, 109 and corporate license transfer, 135–36 and elimination of EEO rules, 145–46 en banc review, 108, 110–11, 116–17, 118, 119, 124, 152 ex parte communications ruling, 124 and Fairness Doctrine, 108, 132–33 and FCC argument preparations, 111–18, 155–58 FCC relationship, 83–88, 95, 97, 98, 106, 160–61 Home Box Office case, 84, 86, 97, 102, 104, 120, 122–23 indecent words case, 97, 98 judges, 85–86, 97, 98, 111, 116–17, 158–59 A-15 toughest questioners, 159–60 Lebanon Valley radio license case, 81, 82–83, 85–86 licensing comparative renewal cases, 110–11, 127, 128, 130–31, 153, 154 and minority ownership policies, 134, 136 and newspaper/broadcasting cross-ownership divestiture, 100, 162 NextWave radio license case, 147–48, 157, 158 and syndication rules, 158–59 U.S. Court of Appeals for the Fifth Circuit, 120, 122 U.S. Court of Appeals for the Fourth Circuit, 104–5, 119–23 judge recusals, 119–20 U.S. Court of Appeals for the Ninth Circuit, 94, 139 U.S. Court of Appeals for the Second Circuit, 83, 89–91, 92, 99, 131, 157 NextWave bankruptcy case, 157–58 U.S. Court of Appeals for the Seventh Circuit, 92, 139, 140, 141, 152 U.S. Court of Appeals for the Third Circuit, 120, 144 U.S. Courts of Appeal, circuit lottery, 139–40 U.S. Department of Justice. See Justice Department, U.S. U.S. Navy. See Navy, U.S. U.S. Solicitor General, 50, 163 U.S. Supreme Court. See Supreme Court, U.S. Valenti, Jack, 138, 153 VHF television, 153–54 Vietnam War, 12–16, 28, 31 draft deferments, 14–16 See also antiwar demonstrations Wald, Patricia, 160 Wallace, Larry, 163 Walters, Vernon, 54 warrantless wiretaps, 49, 53 Washington, D.C., 11, 29 Watergate, 37, 39, 47, 51–63, 67–70 break-in and initial arrests, 53–54, 60 Dean revelations, 69 and Felt (Deep Throat), 51, 52, 61–63, 65, 66, 72n money trail, 54, 55, 58–60 Nixon/FBI investigation links, 43, 50, 51, 52–53, 56, 63, 67, 68, 69, 72n Special Prosecutor’s Office, 71 White House Counsel’s Office, 42–43, 69 and FCC positions, 152–53 See also specific presidents Widener, Emory, 119, 120, 121, 122 Wiley, Richard, 74, 83, 92–93, 99, 106, 120, 126, 148, 149 Wilkey, Malcolm, 86, 127–28 A-16 Wilmer Hale LLP, 112, 113, 162, 163 wiretapping. See warrantless wiretaps Wirth, Tim, 154–55 Wollenberg, Roger, 111–12, 113, 116, 117, 162, 163 women broadcast station ownership, 134, 136, 144, 151, 163 Harvard Law students, 34, 35 Woodward, Bob, 52 World War II, 2 Wright, Christopher J., 146, 162 Wright, J. Skelly, 85, 86, 116, 117, 123, 124, 161 Young Republicans, 13, 21, 44 B-1 TABLE OF CASES Oral History of Daniel “Mack” Armstrong American Security Council Education Foundation v. Federal Communications Commission and United States of America 607 F.2d 438 (1979), 107–9, 111–12, 113, 114, 117 American Telephone and Telegraph Company v. MCI Communications Corporation and MCI Telecommunications, 748 F.2d 799 (1984), 116, 161 Brown v. Board of Education 347 U.S. (1954), 3, 5 Central Florida Enterprises Inc. v. Federal Communications Commission 598 F.2d 37 (1978), 109–10, 111, 117–18, 127–28, 156 FCC v. National Citizens Committee for Broadcasting 436 U.S. 775 (1978), 84 FCC v. NextWave Communications, Inc. 537 U.S. 293 (2003), 147–48, 157–58 FCC vs. WNCN Listeners Guild 450 U.S. 582 (1981), 106 Federal Communications Commission v. Pacifica 438 U.S. 726 (1978), 85, 94–98, 127 Garrett v. F.C.C. 513 F.2d 1056 (1975), 87 Hawkins v. McGee 84 N.H. 114, 146A 641 (1929), 23 Home Box Office v. Federal Communications Commission 567 F.2d 9 (1977), 84, 86, 97, 102, 104, 120, 122–23, 151–52, 156, 160–61 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission 565 U.S. — (2012), 145 Keith case. See United States v. U.S. District Court Lebanon Valley Radio Inc. v. F.C.C. 503 F2d 196 (1974), 81–83, 85–87 Matt Sheldon v. FCC, 81 Metro Broadcasting Inc. v. FCC 497 U.S. 547 (1990), 125, 151, 163 Red Lion Broadcasting Co. v. FCC 395 US 367 (1969), 136–37 United States v. U.S. District Court (Keith case) 407 U.S. 297 (1972), 49 WNCN Listeners Guild v. FCC 610 F2d 838 (1979), 106 Wright v. Mt. Mansfield Lift 96 F.Supp. 786 (1951), 90, 91